New South Wales
Court of Criminal Appeal
CITATION: Gao v R [2008] NSWCCA 234 HEARING DATE(S): 4 September 2008
JUDGMENT DATE:
10 October 2008JUDGMENT 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 1985CATEGORY: 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 398PARTIES: 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
2006/529210 October 2008McCLELLAN CJ at CL
HOEBEN J
HARRISON J
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…
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- AGLC
- Gao v The Queen [2008] NSWCCA 234
- Case
- [2008] NSWCCA 234
- Decision Date
CaseChat Overview and Summary
The court held that for parity to be meaningful, the applicant and co-offender must be truly comparable in terms of their respective roles and culpability. Here, the court found that the applicant and co-offender were not truly comparable, thus negating the parity argument. The court further examined whether the sentence gave rise to a reasonable sense of grievance. It found that no disparity had been demonstrated, and therefore, the sentence was not excessive. Regarding the concurrent sentencing issue, the court considered that although the offences had common features, they were distinct in time and nature. The court concluded that the partial accumulation of one year for the two separate acts of serious criminality was not erroneous.
In light of the above findings, the court dismissed the appeal. The sentence imposed on Gao was deemed appropriate and did not create an unreasonable sense of grievance. The court's decision affirmed the original sentencing approach and maintained the imposed penalties.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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