Gao v The Queen - [2008] NSWCCA 234

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Gao v R [2008] NSWCCA 234

HEARING DATE(S): 4 September 2008

JUDGMENT DATE:
10 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hoeben J at 2; Harrison J at 3

DECISION: 1. Leave to appeal out of time granted.
2. Appeal dismissed.

CATCHWORDS: SENTENCING – two counts of supply commercial quantity of ecstasy – appeal against sentence said to be disproportionate to comparable co-offender – parity – whether applicant and co-offender truly comparable – whether sentence gives rise to a reasonable sense of grievance – no disparity demonstrated – SENTENCING - offences with common features but separate and distinct in time - whether sentencing judge erred in failing to order that sentences be served concurrently - accumulation of one year –– two separate acts of serious criminality – partial accumulation of one year not erroneous – appeal dismissed

LEGISLATION CITED: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Lewins v R [2007] NSWCCA 189
R v Boney [2001] NSWCCA 432
R v Peng Gao; R v Benjamin Lim; Benjamin Lim v R [2007] NSWCCA 343
R v GWM [2005] NSWCCA 101; 152 A Crim R 482
R (Cth) v Kai Kong Li [2005] NSWCCA 154
R v Makisi [2004] NSWCCA 333; (2004) 151 A Crim R 245
R v Najem [2008] NSWCCA 32
R v Pan [2005] NSWCCA 114
R v Reid [2000] NSWCCA 166
Tatana v R [2006] NSWCCA 398

PARTIES: Peng Gao (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/5292

COUNSEL: J A Overall (Applicant)
N F Noman (Crown)

SOLICITORS: Ren Zhou Lawyers (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0462

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 15 December 2006

2006/5292

McCLELLAN CJ at CL
HOEBEN J
HARRISON J
10 October 2008

Peng GAO v R

Judgment

1 McCLELLAN CJ at CL: I agree with Harrison J.

2 HOEBEN J: I agree with Harrison J.

3 HARRISON J: By his notice of intention to appeal lodged on 18 December 2006 the applicant seeks leave to appeal against the severity of sentences imposed on him by his Honour Berman DCJ on 15 December 2006. The appeal should ordinarily have been lodged by 18 June 2007 but on 28 May 2007 an extension until 18 September 2007 was granted. No further extension was sought. An unsuccessful Crown appeal was argued on 30 August 2007 and decided on 14 December 2007. The present notice of appeal was filed on 22 July 2008 or 10 months out of time. The Crown opposes both the application for leave to appeal and the appeal.

Background

4 On 30 May 2006 the applicant was committed for sentence in the Central Local Court following pleas of guilty to the following charges:

Charge 1 : Supply prohibited drug (ecstasy) in an amount which is not less than the large commercial quantity, an offence contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, for which the maximum penalty is life imprisonment and/or a fine of 5000 penalty units. A standard non-parole period of 15 years applies to this offence.

5 The applicant was sentenced to a total term of 12 years, with a non-parole period of 8 years, there being an accumulation of 1 year. On the first charge the applicant was sentenced to a non-parole period of imprisonment of 7 years commencing on 11 February 2007 and expiring on 10 February 2014 with a balance of term of 4 years expiring on 10 February 2018. On the second charge the applicant was sentenced to a non-parole period of imprisonment of 5 years commencing on 11 February 2006 and expiring on 10 February 2011 with a balance of term of 2 years expiring on 10 February 2013.

6 On 14 December 2007 the Court of Criminal Appeal dismissed an appeal by the Crown against the inadequacy of the sentences imposed on the applicant: R v Peng Gao; R v Benjamin Lim; Benjamin Lim v R [2007] NSWCCA 343. The Crown had contended that the sentences imposed by his Honour fell below the mid-range of objective seriousness. That submission was rejected. The Court found that the sentences were lenient but that they were not "entirely out of the range available". The Court expressed concern about the adequacy of the total sentence imposed for the two charges, but dismissed the appeal in the exercise of its discretion at pars [31]-[32] and [36]-[38].

7 On 29 March 2007 Benjamin Lim was sentenced by his Honour. Lim had pleaded guilty on the day of his trial to one offence of supplying (agreeing to supply) a prohibited drug (ecstasy) in an amount, which is not less than the large commercial quantity, a\nd was sentenced to a non-parole period of 5 years with a balance of term of 3 years. His Honour also took into account two offences of supplying (deemed) a prohibited drug. The offence for which Lim was sentenced was not the same offence for which the applicant was sentenced, the agree to supply on 27 January 2006 offence appearing instead on the Form 1.

8 The Crown also lodged an appeal against the alleged manifest inadequacy of the sentence imposed on Lim, and that appeal was heard together with the Crown appeal against the applicant's sentence. The Court allowed the appeal, at the same time dismissing Lim's cross appeal against his sentence, finding that his Honour erred in rejecting a submission from the Crown that an agreement to supply was capable of being considered as of equal criminality to an actual supply, finding that a starting point of 9 years, before the application of a discount for a plea of guilty, was excessively lenient. This was especially so as Lim was on bail at the time of the offence, having regard to the quantity of prohibited drugs involved and in the light of the heavier sentence that had already been imposed by his Honour on the applicant who was at a "lesser position in the supply hierarchy" at pars [29] and [42]. The Court re-sentenced Lim to a total term of 9 years and 10 months made up of a non-parole period of 6 years with a balance of term of 3 years and 10 months.

9 The Court noted that its starting point, prior to a ten per cent discount for Lim's late plea of guilty, was 11 years: see par [44]. This was said to be "at the very bottom of the available range". The Court also noted at par [43] that a starting point of 14 years would have been justified at first instance. By way of comparison, the Court indicated that his Honour's starting point in respect of the applicant, prior to a discount of 25 per cent for his early plea, was 14 years and 8 months in respect of charge 1, and 9 years and 4 months in respect of charge 2: see par [33].

Facts

10 The facts are conveniently set out by this Court in its judgment following the Crown appeals at pars [6] – [15] as follows:

[6] In November 2005, a joint investigation including the New South Wales Crime Commission identified the respondent Gao as "Doggy" in the course of a number of legally intercepted telephone calls, wherein coded language was used by the respondent and his associates to refer to prohibited drugs and their supply.

[7] On 22 December 2005, the respondent Gao met with an undercover police operative at Darling Harbour. Gao and the police officer discussed the supply of 1000 MDMA or ecstasy tablets. Gao agreed to supply that quantity for $15 per tablet. At a further meeting later that night, Gao supplied the police officer with that quantity of tablets and was given $15,000 cash in return. Analysis of these tablets revealed that they contained 26.5% 3,4-methylenedioxy-methylamphetamine. The weight of the tablets, being 284 g, was more than twice the commercial quantity applicable to that prohibited drug. This constituted the offence of Supply Commercial Quantity committed by Gao.

[8] On 4 January 2006, Gao again met with the police officer at Darling Harbour. During this meeting Gao and the officer discussed the supply of 2000 ecstasy tablets. Once again, Gao agreed to supply the police with that quantity for $15 per tablet. Later that evening, Gao supplied the police officer with that quantity of tablets in return for the sum of $30,000 in cash. Analysis of those tablets revealed a 26% purity of MDMA. The weight of the tablets was 568.94 g, exceeding the large commercial quantity applicable to that drug by 68 g. This constituted the offence of Supply Large Commercial Quantity committed by Gao.

[9] On 20 January 2006 the police officer again contacted Gao and commenced negotiations with him for the purchase of 10,000 ecstasy tablets. Gao informed the police officer that his usual supplier was unavailable and that he would have to source the tablets from another associate. The police officer requested a sample of between 50 and 100 tablets.

[10] As a result of this negotiation, Gao contacted Lim, who informed Gao that the police officer would have to pay $30-$35 per tablet. The police officer rejected that price. There were further discussions between Gao and Lim. Later that day, Lim contacted Gao and indicated that he had 50 tablets for supply to the police officer. However, the supply did not proceed. This constituted one of the charges against Gao (Agree to Supply) on the Form One.

[11] On 24 January 2006, Gao contacted the police officer to negotiate the supply of between 8,000 and 10,000 tablets for the following day. Gao then contacted Lim to arrange a meeting at Lim's residence to discuss the negotiated purchase. The following day, the police officer contacted Gao and confirmed that he wished to purchase 10,000 tablets. Arrangements were made to meet at 4 p.m. that day. Gao contacted Lim and confirmed that he wanted "ten" for 4 p.m. However, the meeting did not occur until 8 p.m. that evening. This constituted a further charge of Agree to Supply against Gao on the Form One.

[12] At 8 p.m. the police officer met with Gao at Darling Harbour where Gao was shown the sum of $160,000 in cash. Gao then left Darling Harbour in order to meet with Lim at a hotel in the Sydney CBD. They separated and met later at a hotel on Broadway, Ultimo before walking to Lim's residence in Mountain St, Ultimo. Following further negotiations between the police officer and Gao by way of telephone, the transaction was ultimately terminated by the police officer.

[13] On 26 January 2006, Lim contacted Gao and asked for an explanation for the failure of the transaction the previous evening. Gao indicated that the police officer had gone elsewhere. Lim urged Gao to contact the proposed purchaser with a view to supplying 5000 tablets. In the afternoon of that day, the police officer contacted Gao and negotiated for the purchase of 5000 tablets the following day.

[14] On 27 January 2006, the police officer contacted Gao and confirmed that the transaction was to go ahead that evening. The police officer met with Gao in Darling Harbour, then both men walked to Quay St, Ultimo. The police officer left the area a short time later. Gao was seen to enter the premises occupied by Lim in Mountain St, Ultimo. The police officer cancelled the supply when Gao was unable to produce the tablets that day. This constituted the further charge of Agree to Supply against Gao on the Form One.

Grounds of Appeal

11 The grounds of appeal to this Court are as follows:

1. There is a lack of parity between the sentence of the applicant and the sentence of the co-accused Benjamin Lim.

Ground 1

12 The applicant supplied 2000 tablets. Lim agreed to supply 5000 tablets. The applicant submitted that Lim's supply offence was more serious because it involved more tablets as indicated. Moreover, Lim was higher in the drug hierarchy than the applicant, he committed his offence whilst on bail and he had a prior criminal record. Under these circumstances the applicant submitted that his Honour should have determined the applicant's starting point as less than Lim's starting point of 11 years. The applicant submitted that he has a justifiable sense of grievance on grounds of parity.

13 The Crown responded as follows. First, Lim was sentenced for an offence for which the applicant accepted responsibility on a Form 1. There was no discrete comparable sentence. Although both offences were offences of supplying a large commercial quantity of ecstasy tablets, there was no nexus between the applicant and Lim in respect of charge 1. Lim was not involved in that offence. It was acknowledged both by his Honour and this Court in its judgment following the Crown appeals that the applicant and Lim were not co-offenders and that parity principles did not strictly apply. There was, however, an express acknowledgement that the sentence imposed on the applicant first in time needed to be borne in mind when sentencing Lim: see the Remarks on Sentence at page seven and R v Peng Gao; R v Benjamin Lim; Benjamin Lim v R (supra) at [42]. The applicant's submissions draw attention to the starting points of the sentences whereas the Crown submits that the end result in each case is significant.

14 As appears above, following this Court's judgment in the successful Crown appeal against Lim's sentence, that sentence became a non-parole period of 6 years imprisonment with a balance of term of 3 years and 10 months. The applicant's sentence on charge 1 was a non-parole period of 7 years with a balance of term of 4 years. That sentence also had factored into it three separate offences of agreeing to supply a prohibited drug on a Form 1. The Crown contends that it can be assumed from his Honour's remarks, in which he referred to the Form 1 offences several times, that the sentence for charge 1 was increased by virtue of the three offences on the Form 1. According to this submission, there is no reason to suspect that his Honour did anything other than deal with the Form 1 offences in accordance with the application of proper sentencing principles - namely, the increase in the sentence for charge 1 was not a mere nominal increase. These offences were in themselves quite serious even though there was some overlap among them. Two of the agree to supply offences involved very large quantities of ecstasy (10000 and 5000 tablets). The 10,000 tablets were to be sold for $160,000. A direct comparison between the sentences imposed, or a simple comparison between the quantities of tablets involved, in respect of the applicant's substantive offence and Lim's substantive offence is said by the Crown to be artificial as it ignores the fact that the applicant's sentence was longer than Lim's by virtue of his criminality in three other offences.

15 The Crown submits further that charge 1 involved an actual supply by the applicant of 2000 ecstasy tablets to the undercover operative on 4 January 2006. Lim's offence arose as a result of his agreement to supply the applicant once Lim had been approached by the applicant to supply a total of 5000 ecstasy tablets. When sentencing both the applicant and Lim his Honour found that each of their offences fell below the mid range of objective gravity and this Court in its judgment following the Crown appeals upheld these findings: see pars [25] and [30]. According to the Crown's submission, his Honour clearly had regard to the sentence imposed on the applicant when he sentenced Lim, as did this Court when it resentenced Lim, and due regard was also given to all of the differences between each offender. His Honour was also well aware of the relative criminal culpabilities of each offender and was attuned to the degree of difference in the sentences he was minded to impose: Tatana v R [2006] NSWCCA 398 at [28].

16 Secondly, the Crown draws attention to the remarks on sentence in respect of each offender. When sentencing Lim his Honour said the following:

"The offender has a criminal history, although most of the matters are relatively minor. He has had six months in custody for an offence of aggravated robbery. The offender served that sentence whilst on remand for this matter. That has a number of consequences which I will deal with later in terms of the structure of the sentence, but for present purposes it is enough to note the offender was certainly not a man of prior good character. Indeed, even in the absence of those convictions, it is apparent that the offender has been committing criminal acts for many years through his taking drugs": ROS 4.

"The offender was also on bail when he committed this offence which is a matter of serious aggravation": ROS 5.

"What is of most importance to the offender's present position is that he commenced using drugs, and had developed a significant habit by the time he committed this offence. Of course it would surprise no-one to learn that what apparently motivated the offender to commit this offence was so that he could obtain money to feed his drug addiction": ROS 5.

17 Special circumstances were also found in that the sentence for the drug offence was being added to a pre-existing sentence for the offence of aggravated robbery, Lim's youth and in light of his drug addiction: ROS 7.

18 When sentencing the applicant, his Honour made the following remarks:

"The offender has some criminal history since coming to Australia but it is not of great significance . . . I simply cannot find that the offender was of good character before he committed these offences. Even in the presentence report there are indications of involvement in drugs for some time, itself an illegal activity": ROS 4, 5.

"The information in the pre-sentence report is untested, it is what the offender told the Probation and Parole Service although none of it could be verified. With that qualification he did say that he began using alcohol and illicit drugs at a relatively young age and is also addicted to gambling. He claimed also to suffer from depression. He said that he committed the offence to support his gambling habits and drug addictions. I was told without objection from the Crown by Mr Bellanto that he was only to earn a small sum of money from his activities which have led to these charges. . . there is everything to suggest that the offender was a capable and indeed enthusiastic supplier of drugs because he stood to make some profit out of it": ROS 3.

19 Special circumstances were found as a result of the applicant's sentence being his first time in custody and because his family were in a different country: ROS 5.

20 The Crown submitted that when his Honour sentenced Lim he was not only keenly aware of all the matters now raised by the applicant, as was this Court when it re-sentenced Lim, but there were differences between each offender that needed to be addressed. For instance, Lim's youth was a factor that was not applicable when sentencing the applicant. In R v Makisi [2004] NSWCCA 333; (2004) 151 A Crim R 245 at [33] the Court said that the "sentencing of a twenty year old is a very different procedure from the sentencing of a twenty-five year old". In that case this Court dismissed an appeal on parity grounds by virtue of the fact that the applicant was older than his co-offender, even though the younger co-offender had a more serious criminal history. Lim was just over 20 years old at the time of his offence. The applicant was 24½ years old. Lim's reasons for the offence were solely attributable to his drug habit, whereas it appears that the applicant was partially motivated by profit, in all probability to fund a gambling addiction.

21 The Crown drew attention to the applicant's submission that he has a "minor prior offence" and that Lim had "serious prior criminal offences". The Crown submitted that both his Honour at first instance and this Court following the Crown appeals expressly noted the differences in their criminal records. Both offenders in fact had fairly minor criminal histories, the only difference being that Lim had an offence noted on his record to be one of "aggravated robbery", which was committed on 11 December 2003 when he was 18 years old.

22 The Crown further emphasised that the fact that Lim had been on bail when he committed his offence was expressly taken into account both at first instance and by this Court in the Crown appeal. It was but one matter that needed to be taken into consideration amongst others, including the sentence that had been imposed on the applicant. However, Lim was evidently able to demonstrate contrition, whereas the applicant was not. Findings in respect of rehabilitation were also different to a degree, and these matters were all relevant when it came to factoring in the need for deterrence.

23 Furthermore, the submissions filed for the applicant point to the differences in the placement of the applicant and Lim within the drug hierarchy. The Crown submitted that it is not insignificant that the offence on which Lim was sentenced was committed at the instigation of the applicant. When his Honour sentenced Lim at first instance he said:

"The offender's role in this process was as a middle man, however he was a fair way up the supply process. The undercover officer was representing himself as a person who needed a large quantity of drugs. He approached Mr Gow [sic] in order to obtain those drugs and Mr Gow [sic] approached the offender, the offender in turn approaching the man known as Frankie. Thus, although the offender was playing the role of a middle man he was, as I have said, a significant way up the drug supply chain": ROS 4.

24 With respect to the applicant his Honour said, "The offender was thus a relatively high level supplier of ecstasy. He was able to supply at short notice large quantities of that drug for significant sums of money": ROS 2. There was nothing said by this Court in its judgment following the Crown appeals that watered down the applicant's role, although the view was taken that the applicant's position appeared to be "below that of Lim": see par [24]. However, the Crown drew attention to the fact that this Court also noted the following matters:

"[24] . . . The respondent was obviously engaged in a commercial operation to supply ecstasy on a fairly regular basis. He had a number of contacts from whom to obtain the drug in large quantities, indicating that he was known and trusted by those who were closer to the point of manufacture and/or importation than he was. He was responsible for negotiating the price of the drug, but only up to a point. The respondent deferred to Lim when the price of the sample was set. These are all reasonably typical features of an offence of this type, in the sense that those who are capable of supplying such quantities have, of necessity, an acquaintance with other offenders who are nearer the source of the drug."

25 The Crown submitted that a reasonable person looking at these circumstances would not immediately regard the applicant's sense of grievance as justified. There is no obligation to apply the parity principle where the differences between the offenders justify a different result: R v Reid [2000] NSWCCA 166. The power of this court to intervene to redress disparity is nonetheless discretionary: R (Cth) v Kai Kong Li [2005] NSWCCA 154 at pars [40] and [44]; Lewins v R [2007] NSWCCA 189 at par [7]; R v Najem [2008] NSWCCA 32 at par [57].

26 In dismissing the Crown appeal against the applicant's sentence, and allowing the appeal in respect of Lim's sentence, this Court held that the sentence imposed on the applicant was not manifestly inadequate but lenient: par [31]. When sentencing the applicant his Honour said, "I will make a small adjustment in the offender's favour but the non parole period in each case that I will shortly announce is the lowest which I consider properly reflects the objective gravity of the offender's conduct": ROS 5, 6. This Court subsequently noted in its judgment following the Crown appeal that "there was very little in the way of subjective features that would justify any further mitigation of the penalty appropriate to the objective gravity of the offences": par [35]. This Court said that the sentence imposed at first instance on Lim was "excessively lenient" (par [42]), that the fresh sentence following the Crown appeal was at the very bottom of the range strictly due to double jeopardy (par [43]) and the starting point of 14 years at first instance would have been more than justified (par [43]). The Crown submitted that for this Court now to reduce the applicant's sentence would be to "produce a sentence disproportionate to the objective and subjective criminality involved", an outcome that has been held to warrant this Court declining to intervene even where there is a degree of disparity between sentences: R v Pan [2005] NSWCCA 114 at par [35], quoting R v Boney [2001] NSWCCA 432 at [25].

27 The Crown submitted that no other sentence was warranted in law: s 6(3) Criminal Appeal Act 1912.

Consideration

28 It must be apparent, in comparing any two sentences imposed upon different offenders, that the facts and circumstances applicable to one could never be identical to the facts and circumstances applicable to the other. The degrees of similarity between or among any two or more offenders and the sentences imposed upon them will always be a matter of extent and degree. A series of matters favouring the imposition of one sentence in respect of a particular offender may favour the imposition of a completely different sentence in respect of another offender. The reasonable sense of grievance to which the authorities make reference is only triggered where the degrees of similarity between the particular factors being considered would appear to an objective bystander to be disproportionate to the sentences that respectively have been imposed. The very nature of this exercise will excite varying responses.

29 I am not satisfied that a comparison of the sentences imposed upon the applicant and the sentence imposed on Lim gives rise to a reasonable sense of grievance or indeed any cause for grievance at all. As the Crown submissions emphasise and clarify, there were objective and subjective features relating to each offender, some of which were favourable and some of which were unfavourable to the offender in each case. A comparison of different sentences for different individuals is necessarily not a comparison of like with like in all cases. The manner in which his Honour dealt with the sentences he imposed demonstrates that he was alive both to the similarities and to the differences between the particular circumstances of each offender. In my opinion the applicant has not demonstrated that there exists such a disparity between these sentences as to give rise to a reasonable sense of grievance in the applicant as a result. An issue of parity favouring the applicant simply does not arise.

30 In my opinion the first ground of appeal should be dismissed.

Ground 2

31 The applicant submitted that his Honour could have sentenced the applicant to sentences to be served concurrently because the offences had common features. These were that they were each an offence relating to the supply of drugs, of the same type and supplied to the same undercover police operative posing as a buyer. The applicant submitted that the two sentences should be served concurrently because of these common features.

32 The issue was considered in R v GWM [2005] NSWCCA 101; 152 A Crim R 482 where Studdert J said at pars [46] to [48]:

33 Inherent in the applicant's submission is the contention that the offences for which he was sentenced should be regarded as involving a continuing episode of criminality rather than a series of discrete offences. Moreover, the features common to the offences are said to point more strongly towards concurrence than any suggested disparate nature of the offences or other characteristics that they may have that point the other way.

34 In response the Crown submitted that it has not been demonstrated that his Honour erred in exercising his discretion partially to accumulate the sentences. The Crown points to the fact that this Court held in the Crown appeal that "accumulation of the sentence for the supply of the large commercial quantity by one year upon the sentence imposed for the supply of the commercial quantity does not reflect the criminality inherent in two substantial supplies, two weeks apart. Were it not for the particular circumstances of this case, I would favour intervention to correct this aspect of the sentencing exercise": par [36].

Consideration

35 The two offences arose as a result of the applicant's supply of drugs to the same police officer whilst working in the same drug organisation. However, the two offences were distinct in time and in nature. Each offence involved two distinct and different quantities of drugs, supplied to the officer as a result of separate negotiations. As his Honour noted, "Mr Bellanto also says that I should not provide for any element of accumulation in the sentences on each of the two offences. They were all committed during the one course of conduct but it did extend over a number of days and there were two quite separate acts of supply. I will therefore partially accumulate the sentences I will shortly announce to reflect the fact that [sic] were two separate acts of serious criminality": ROS 6.

36 In my opinion, even though the offences were similar, they were separate and distinct. The second offence was in no sense a continuation of the first but in truth a second offence in a (small) series of similar offences. It would in my opinion have been wholly inappropriate to do other than to accumulate the sentences to some extent at least. The Crown submitted that in the circumstances of this case the period of accumulation was minimal. Minds may differ as to the extent of the accumulation for which his Honour should have provided but in my opinion some accumulation was appropriate. It is not possible to point to or to demonstrate error in the course that his Honour adopted or in the period of one year that he chose.

37 The second ground of appeal should be dismissed.

Leave to appeal

38 Although in the end result the applicant's appeal was lodged out of time, it followed an earlier successful application to extend the time and occurred in the context of a Crown appeal to this Court in respect of both the applicant and Benjamin Lim. Following dismissal of the Crown appeal in the applicant's case on 14 December 2007, the applicant instructed new solicitors in February the following year. On 25 February 2008 those lawyers sent a request by facsimile to this Court for the file and transcript of the proceedings in the District Court. On 18 April 2008 the applicant's lawyers sent a request by facsimile to the District Court for that Court's file. That file was provided to the applicant's lawyers by the District Court on 12 June 2008.

39 I consider that in those circumstances leave to appeal out of time should be granted.

Orders

40 I would propose the following orders:

1. Grant leave to the applicant to appeal out of time.
2. Dismiss the appeal.

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Citations

Gao v The Queen [2008] NSWCCA 234

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R v Gao [2007] NSWCCA 343

Tatana v R [2006] NSWCCA 398

R v Makisi [2004] NSWCCA 333

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CITATION:	Gao v R [2008] NSWCCA 234
HEARING DATE(S):	4 September 2008
JUDGMENT DATE:	10 October 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hoeben J at 2; Harrison J at 3
DECISION:	1. Leave to appeal out of time granted. 2. Appeal dismissed.
CATCHWORDS:	SENTENCING – two counts of supply commercial quantity of ecstasy – appeal against sentence said to be disproportionate to comparable co-offender – parity – whether applicant and co-offender truly comparable – whether sentence gives rise to a reasonable sense of grievance – no disparity demonstrated – SENTENCING - offences with common features but separate and distinct in time - whether sentencing judge erred in failing to order that sentences be served concurrently - accumulation of one year –– two separate acts of serious criminality – partial accumulation of one year not erroneous – appeal dismissed
LEGISLATION CITED:	Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985
CATEGORY:	Principal judgment
CASES CITED:	Lewins v R [2007] NSWCCA 189 R v Boney [2001] NSWCCA 432 R v Peng Gao; R v Benjamin Lim; Benjamin Lim v R [2007] NSWCCA 343 R v GWM [2005] NSWCCA 101; 152 A Crim R 482 R (Cth) v Kai Kong Li [2005] NSWCCA 154 R v Makisi [2004] NSWCCA 333; (2004) 151 A Crim R 245 R v Najem [2008] NSWCCA 32 R v Pan [2005] NSWCCA 114 R v Reid [2000] NSWCCA 166 Tatana v R [2006] NSWCCA 398
PARTIES:	Peng Gao (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/5292
COUNSEL:	J A Overall (Applicant) N F Noman (Crown)
SOLICITORS:	Ren Zhou Lawyers (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0462
LOWER COURT JUDICIAL OFFICER:	Berman DCJ
LOWER COURT DATE OF DECISION:	15 December 2006