Pan v The Queen

[2010] NSWCCA 243

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Pan v R [2010] NSWCCA 243

FILE NUMBER(S):
2008/17665

HEARING DATE(S):
8 October 2010

JUDGMENT DATE:
28 October 2010

PARTIES:
Wen Jie Pan (applicant)
The Crown

JUDGMENT OF:
McClellan CJatCL Hall J Barr AJ   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/1186

LOWER COURT JUDICIAL OFFICER:
Woods DCJ

LOWER COURT DATE OF DECISION:
1 May 2009

COUNSEL:
Applicant in person
V Lydiard (Crown)

SOLICITORS:
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
appeal against sentence
whether the offender had a justifiable sensse of grievance when comparing his sentence with that imposed upon the co-offender
whether the offender was entitled to a discount in excess of 25% for cooperation and early plea of guilty

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

CATEGORY:
Principal judgment

CASES CITED:
England v R, Phanith v R [2009] NSWCCA 274
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Postiglione v The Queen (1997) HCA 26; 189 CLR 295

TEXTS CITED:

DECISION:
Grant leave to appeal but dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/17665

McCLELLAN CJ at CL
HALL J
BARR AJ

THURSDAY 28 OCTOBER 2010

PAN, Wen Jie  v  R

Judgment

1. McCLELLAN CJ at CL: The applicant pleaded guilty to one count of supplying a prohibited drug, namely cocaine, in not less than a large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence was committed in 2001. The amount of cocaine involved was 6.011 kilograms. The applicant fled the country shortly after the offence and was only able to be extradited in 2008. He entered a plea at Central Local Court on 6 November 2008.

2. There was a co-offender Quan Zhang who pleaded guilty to a charge of knowingly take part in the supply of cocaine in an amount not less than a large commercial quantity. He was sentenced to imprisonment for 6 years with a non-parole period of 4 years.

3. The maximum penalty for each offence is imprisonment for life. The applicant was sentenced to imprisonment for 10½ years to date from February 2008 with a non-parole period of 6 years and 9 months.

4. The applicant appeared for himself. The sole ground of appeal was that he has a justifiable sense of grievance when comparing his sentence with that imposed upon the co-offender. It was expressed in the following manner:

   “His Honour’s 25% discount on the starting point of 14 years failed to take into account important mitigating factors.”

5. The sentencing judge made relevant findings of fact. The applicant who has been a resident of Canada is originally of Cantonese origin. He had been working in a casino in Canada when he was prevailed upon by a representative of a major criminal drug organisation to assist them in a drug supply in Sydney. He was motivated to obtain funds to assist his family to help pay medical bills for his wife.

6. The applicant was fully aware that the enterprise involved illicit drugs. He came to Sydney at the request of the controller of the operation. The criminal enterprise was monitored by the Joint Asian Crime Group. The applicant’s role was defined by the sentencing judge as a mid level and trusted member of a well organised and international crime syndicate involved in the importation and distribution of narcotics to Australia.

7. Telephone intercept material was analysed which indicated that the applicant was involved in numerous telephone calls to make arrangements to further the criminal enterprise. The applicant was observed meeting various people around the Sydney central business district. He was ultimately found in possession of the cocaine in a car being driven by the co-offender.

8. The applicant has no prior criminal history.

9. The sentencing judge found that the applicant was genuinely contrite. There is nothing remarkable about his background. His Honour found it was an aggravating feature that the supply of drugs was part of an organised criminal activity. However, his Honour found that the applicant had good prospects of rehabilitation and was conscious of the fact that in prison he would be isolated in prison from his family and friends in Canada.

10. His Honour was mindful of the fact that a period of 6 years had elapsed between the time of the offence and the applicant’s arrest during which time he had demonstrated good conduct. His Honour reflected these circumstances by varying the statutory ratio between the head sentence and the non-parole period.

11. The sentencing judge indicated that in his view an appropriate head sentence would have been a period of 14 years imprisonment. However, he provided a discount of 25% to allow for his plea of guilty, his cooperation and contrition.

12. The applicant submitted that when you compare his sentence with the sentence given to his co-offender he has a justifiable sense of grievance. That grievance was expressed as requiring a greater than 25% discount. The applicant does not complain about the starting point for his own sentence compared with that of his co-offender for whom the starting point which defined his sentence was 8 years. The applicant pointed to the fact that his co-offender contested the matter at committal and accordingly submitted that because he pleaded guilty in the Local Court he was entitled to a greater discount than his co-offender.

13. I am satisfied that having regard to the quantity of drugs involved and the significant role which the applicant played in organising their distribution the sentence which was imposed upon him was not excessive. I appreciate that the applicant has not offended since his original transgression and there is reason to believe that he has good prospects of rehabilitation. However, I am satisfied that the sentencing judge adequately provided for these matters by adjusting the relationship between the non-parole period and the total term of the sentence.

14. With respect to the discount for the plea in the circumstances his Honour provided the applicant with the maximum discount which was appropriate in the circumstances. Although his Honour referred to the fact that the applicant had been cooperative his cooperation was not such as to justify a discount in excess of 25%.

15. It may be that the discount provided to the co-offender was excessive. Given that there was a contested committal a discount of less than 25% may have been appropriate. However, the discount to be provided to the co-offender depended upon all of the circumstances of relevance to his sentencing. The fact that he received a 25% discount does not justify a greater discount than the facts of the applicant’s case warranted.

16. This Court has on many occasions drawn attention to the fact that considerations of parity which justify appellate intervention are confined. The High Court’s decisions in relation to this issue refer to “gross”, “marked”, “glaring” or “manifest disparity”: see Lowe v The Queen [1984] HCA 46; 154 CLR 606. This issue was discussed by Howie J in England v R, Phanith v R [2009] NSWCCA 274; see also Postiglione v The Queen (1997) HCA 26; 189 CLR 295.

17. As I have indicated the applicant’s submission was confined to a complaint that the discount he received should have been greater than that of his co-offender. I am not persuaded that his circumstances justified a greater discount nor that there is any glaring or gross disparity between the sentence he received and the sentence imposed on the co-offender.

18. Although I would grant leave to appeal I would dismiss the appeal.

19. HALL J:  I agree with McClellan CJ at CL.

20. BARR AJ:  I agree with McClellan CJ at CL.

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LAST UPDATED:
6 December 2010