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Piao v The Queen

Piao v The Queen

Case [2019] NSWCCA 154 12 July 2019

Sentencing

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Piao v R [2019] NSWCCA 154
Hearing dates: 3 May 2019
Decision date: 12 July 2019
Before: Basten JA at [1];
R A Hulme J at [12];
Fagan J at [48]
Decision:
1. Extension of time to file Notice of Application for Leave to Appeal to 19 December 2018 granted.
2. Leave to appeal granted.
3. Appeal against sentence dismissed.

Catchwords: SENTENCING — appeal against sentence — co-offenders — disparity between sentences – whether legitimate sense of grievance arising from disparity – assessment of disparity based on objective criteria – consideration of basis upon which co-offenders sentenced – differences in statements of agreed facts and subjective cases between applicant and co-offenders – no justifiable grievance assessed by reference to objective criteria – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 93T
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited: Baquiran v R [2014] NSWCCA 221
Fenech v R [2018] NSWCCA 160
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Nasiri v R [2019] NSWCCA 16
PG v R [2017] NSWCCA 179
R v Yiu; R v Yau [2018] NSWCCA 155
Wright (a pseudonym) v R [2017] NSWCCA 289
Category: Principal judgment
Parties: Jian Piao (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr M Mantaj (Applicant)
Ms H Roberts (Crown)
Solicitors:
Conditsis Lawyers
Solicitor for Public Prosecutions

File Number(s): 2016/114612
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

31 August 2017

Before:

Maiden SC DCJ

File Number(s):

2016/114612

[This headnote is not to be read as part of the judgment]
Mr Jian Piao (the applicant) pleaded guilty to an offence of supplying methylamphetamine in an amount not less than the large commercial quantity. Along with two co-offenders, the applicant had been involved in an attempt to supply one kilogram of methylamphetamine to an undercover police officer. The applicant counted the money ($110,000) and retrieved the drugs from his nearby apartment, then brought the drugs back to the undercover police officer, at which point all three were arrested.
The applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years in August 2017. The co-offenders were sentenced together several months later by the same sentencing judge in March 2018 for the same offence, and each received a sentence of 3 years with a non-parole period of 2 years. After a Crown appeal against the inadequacy of those sentences, the Court of Criminal Appeal resentenced each co-offender to imprisonment for 6 years with a non-parole period of 4 years.
Soon after the resentencing of his co-offenders, the applicant sought leave to appeal on the following grounds:
1. The sentences imposed on the applicant’s co-offenders, Mung Yi Yau and Cheuk Hang Yiu give rise to a justifiable sense of grievance…

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 Piao v The Queen

Details

AGLC: Piao v The Queen [2019] NSWCCA 154
Case: [2019] NSWCCA 154
Decision Date: 12 July 2019

CaseChat Overview and Summary

In the matter of Piao v The Queen, the appellant, an individual convicted of criminal offences, sought to appeal against the sentence imposed by the court. The respondent was the Crown, representing the state. The central issue in this appeal was the significant disparity in sentences handed down to the appellant and his co-offenders. The appeal was heard and determined by the High Court of Australia.

The legal questions before the court involved whether the appellant's sense of grievance concerning the disparity in sentences was legitimate and whether the assessment of that disparity should be based on objective criteria. Additionally, the court examined the basis upon which the co-offenders were sentenced and the differences in the statements of agreed facts and subjective cases between the appellant and his co-offenders. The court considered whether these differences warranted a justifiable grievance based on objective criteria.

The High Court found that, while the appellant's sense of grievance was legitimate, it did not amount to a justifiable grievance when assessed against objective criteria. The court emphasised the importance of considering the basis upon which the co-offenders were sentenced and the differences in their respective statements of agreed facts and subjective cases. Ultimately, the court held that the disparity in sentences did not render the appellant's sentence unjust or inappropriate. Consequently, the appeal was dismissed, and leave to appeal was granted solely to address the issue of the sentence's legitimacy.

Orders