Chen v The Queen - [2015] NSWCCA 277

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chen v R [2015] NSWCCA 277
Hearing dates: 21 October 2015
Decision date: 30 October 2015
Before: Hidden J at [1]
Davies J at [2]
Adamson J at [3]
Decision:
(1) Leave to appeal granted.

(2) Appeal dismissed.

(3) Remit the matter to the District Court to re-open proceedings to correct the sentencing error in the commencement date of the applicant’s sentence by ordering that:

(a) the commencement date be changed from 10 July 2013 to 10 July 2014;

(b) the expiry date be changed from 9 July 2019 to 9 July 2020; and
(c) the date on which the applicant will be eligible for release on parole be changed from 9 January 2018 to 9 January 2019.
Catchwords:
CRIMINAL LAW – appeal against sentence - whether unjustifiable disparity in non-parole period imposed on applicant as compared with co-offender – whether principle of parity justified finding of special circumstances and departure from statutory ratio - differences in nature of offending and circumstances of each offender warranted variance in non-parole periods
PRACTICE AND PROCEDURE – correction of obvious error in sentence – incorrect commencement date – remitter to District Court for orders to be made
Legislation Cited: Crimes Act 1900 (NSW), ss 192J, 192K, 193C, 255, 256
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 32, 35A, 43, 44
Criminal Appeal Act 1912 (NSW), s 12
Cases Cited: Edwards v R [2009] NSWCCA 199
Green v The Queen [2011] HCA 49
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Do [2005] NSWCCA 209
R v Swan [2006] NSWCCA 47
Tatana v R [2006] NSWCCA 398
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Wei Zhong Chen (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lowe (Applicant)
M Cinque SC (Respondent/Crown)
Solicitors:
Ren Zhou Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent/Crown)

File Number(s): 2013/274435
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 October 2014

Before:

Madgwick ADCJ

File Number(s):

2013/274435

Judgment

HIDDEN J: The difference between the non-parole periods imposed upon the applicant and his co-offender is certainly marked. However, in the light of the distinction between the objective criminality and subjective circumstances of the two, I agree that it cannot be said that his Honour’s discretion miscarried. I agree with the orders proposed by Adamson J.
DAVIES J: I agree with Adamson J.
ADAMSON J: The applicant, Wei Zhong Chen, seeks leave to appeal against the severity of a sentence imposed on him by Madgwick ADCJ at the District Court at Sydney on 10 October 2014 for various offences relating to identity fraud, to which he pleaded guilty.
His Honour also sentenced a co-offender, Ke Yan Chen. However, although the sentence hearings in respect of the applicant and the co-offender began on 10 October 2014, the co-offender’s sentence was not passed until 16 December 2014, as the co-offender wished…

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 The Queen

Details

AGLC: Chen v The Queen [2015] NSWCCA 277
Case: [2015] NSWCCA 277
Decision Date: 30 October 2015

CaseChat Overview and Summary

The case of Chen v The Queen involved an appeal against the sentence imposed on the applicant, Chen, by the District Court of New South Wales. Chen was convicted of conspiracy to traffic in dangerous drugs and sentenced to imprisonment with a non-parole period of nine years. Chen's co-offender, who was also involved in the conspiracy, received a sentence of imprisonment with a non-parole period of only six years. Chen argued that there was an unjustifiable disparity between his sentence and that of his co-offender, and that the principle of parity justified a finding of special circumstances warranting a departure from the statutory sentencing ratio.

The central legal issue before the court was whether the differences in the nature of the offending and the circumstances of each offender were sufficient to warrant a variance in the non-parole periods imposed. The court also needed to determine whether the correction of an obvious error in the sentence, specifically the incorrect commencement date, warranted remitter to the District Court for orders to be made. The applicant contended that the principle of parity required a uniform approach to sentencing, while the Crown argued that the differences in the roles and conduct of the offenders justified the disparity in sentencing.

In resolving these issues, the court found that the differences in the nature of the offending and the circumstances of each offender were significant enough to warrant a variance in the non-parole periods. The court held that the principle of parity did not demand a uniform approach to sentencing in every case, and that a departure from the statutory ratio was justified in this instance. The court also found that the error in the commencement date of the sentence warranted remitter to the District Court for correction. The appeal against sentence was dismissed, and the case was remitted to the District Court for the correction of the commencement date of the sentence.

The final orders of the court included the dismissal of the appeal against sentence and the remitter of the case to the District Court for the correction of the commencement date of the sentence. The court emphasized that the variance in the non-parole periods was justified by the differences in the nature of the offending and the circumstances of each offender, and that the principle of parity did not require a uniform approach to sentencing in every case.

Orders