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Gao v The Queen

Gao v The Queen

Case [2008] NSWCCA 234 10 October 2008

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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…

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 Gao v The Queen

Details

AGLC: Gao v The Queen [2008] NSWCCA 234
Case: [2008] NSWCCA 234
Decision Date: 10 October 2008

CaseChat Overview and Summary

The applicant, Gao, was convicted for supplying a commercial quantity of ecstasy on two separate occasions. Gao appealed against his sentence, arguing it was disproportionate compared to that of his co-offender. The central issue before the court was whether the sentence imposed on Gao was appropriate in comparison to his co-offender and whether it created an unreasonable sense of grievance. Additionally, the court had to consider whether the sentencing judge erred in not ordering the sentences for the two separate offences to be served concurrently.

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