Chen v R; He v R - [2018] NSWCCA 95

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chen v R; He v R [2018] NSWCCA 95
Hearing dates: 11 May 2018
Date of orders: 21 May 2018
Decision date: 21 May 2018
Before: White JA at [1]
Johnson J at [2]
Harrison J at [67]
Decision:
Applicant Chen:
(a) extend time for the filing of a Notice of Intention to Seek Leave to Appeal to 20 March 2018;
(b) grant leave to appeal against sentence;
(c) quash the sentence imposed in the Sydney District Court on 17 June 2016 for the offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug and, in its place, sentence Mr Chen to imprisonment for a term of five years and three months, comprising a non-parole period of three years and nine months commencing on 20 May 2014 and expiring on 19 February 2018 with a balance of term of one year and six months commencing on 20 February 2018 and expiring on 19 August 2019;
(d) note that Mr Chen is eligible for release to parole although it appears that, upon release from custody (and subject to decisions by the State Parole Authority and the Commonwealth Department of Home Affairs), he will be held in immigration detention pending his deportation from Australia.
Applicant He:
(a) grant leave to appeal against sentence;
(b) quash the sentence imposed at the Sydney District Court on 25 August 2016 for the offence of supplying not less than the large commercial quantity of a prohibited drug and, in lieu thereof, taking into account the offence of possession of a prohibited drug on the Form 1, sentence Mr He to a term of imprisonment for six years and nine months comprising a non-parole period of four years and eight months commencing on 20 May 2014 and expiring on 19 January 2019 with a balance of term of two years and one month commencing on 20 January 2019 and expiring on 19 February 2021;
(c) note that Mr He will be eligible for release on parole on 20 January 2019.
Catchwords: CRIMINAL LAW – appeal against sentence – large commercial drug supply - co-offenders resentenced by Court of Criminal Appeal after successful appeals – parity issue arising from resentencing of co-offenders - Crown concedes parity ground established - error in approach to financial gain as aggravating factor - applicants resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Huang v R [2017] NSWCCA 312
Jones v The Queen (1993) 67 ALJR 376
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lin v R [2018] NSWCCA 13
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Texts Cited: ---
Category: Principal judgment
Parties: Rong Chen (Applicant)
Haihui He (Applicant)
Regina (Respondent)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen v R; He v R

Details

AGLC: Chen v The Queen; He v The Queen [2018] NSWCCA 95
Case: [2018] NSWCCA 95
Decision Date: 21 May 2018

CaseChat Overview and Summary

In Chen v R and He v R, the Court of Criminal Appeal considered appeals against sentences imposed for involvement in a significant commercial drug supply. The applicants were part of a conspiracy that supplied over 200 kilograms of methylamphetamine, with the total street value of the drugs estimated at over $28 million. The Court of Criminal Appeal had already resentenced co-offenders involved in the conspiracy. A key issue in the resentencing of the applicants was whether their sentences were commensurate with those of their co-offenders. The Crown conceded that a parity issue had been established, and the applicants argued that their sentences were disproportionately harsher due to an error in the approach to financial gain as an aggravating factor.

The Court of Criminal Appeal examined the principle of parity in sentencing, which ensures that co-offenders involved in the same criminal conduct receive comparable sentences. The Crown accepted that the applicants' sentences were not in parity with those of their co-offenders, and that the primary judge erred in their approach to financial gain. The Court noted that the primary judge had not adequately considered the applicants' roles and contributions to the conspiracy. The applicants contended that their sentences should reflect their lesser involvement and contribution to the overall drug supply. The Court agreed that the primary judge's approach to financial gain was flawed and that the applicants' sentences should be reconsidered in light of the established parity issue.

After reconsidering the applicants' roles and the principle of parity, the Court of Criminal Appeal resentenced the applicants. The Court emphasised the importance of ensuring that sentences reflect the true contributions and roles of the offenders within the conspiracy. The applicants were resentenced to terms that aligned more closely with the sentences of their co-offenders, taking into account the established parity issue and the correct approach to financial gain. The Court's decision highlighted the need for careful consideration of each offender's role and the principle of parity in sentencing for co-offenders involved in large-scale drug conspiracies.

Orders