Ping He v The Queen - [2018] NSWCCA 123

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ping He v R [2018] NSWCCA 123
Hearing dates: 15 June 2018
Date of orders: 22 June 2018
Decision date: 22 June 2018
Before: Leeming JA; Bellew J; Fagan J
Decision:
Leave to appeal is granted
The appeal is dismissed

Catchwords: CRIMINAL LAW – appeal against sentence – subjective factors – parity – dealing with proceeds of crime knowing that they were proceeds contrary to Crimes Act 1900 (NSW), s 193B(2) – four further offences taken into account on a Form 1 – sentenced with co-offender on common principal charges – same aggregate sentence received as co-offender – where appellant’s subjective case more favourable than co-offender – where co-offender had fewer offences on Form 1 – whether sentencing judge failed to give effect to findings on subjective case of appellant – whether disparity giving rise to “justifiable sense of grievance” – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 93T(1A), 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 33, 44, 53A(2)
Criminal Appeal Act 1912 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
Cases Cited: DS v R [2014] NSWCCA 267
England v R [2009] NSWCCA 274
JM v R [2014] NSWCCA 297
Kerr v R [2016] NSWCCA 218
Tuivaga v R [2015] NSWCCA 145
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R [2016] NSWCCA 177
Category: Principal judgment
Parties: Ping He (Appellant)
Regina (Crown)
Representation:
Counsel:
P Lange (Appellant)
K Shead SC (Crown)
Solicitors:
Fusion Legal (Appellant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2014/310579
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 December 2016

Before:

Sweeney DCJ

File Number(s):

2014/310579

Judgment

THE COURT: The applicant seeks leave to appeal against an aggregate sentence passed on 2 December 2016 by her Honour Judge Sweeney in the District Court at Sydney. The counts to which she pleaded guilty and the indicative sentences nominated by her Honour are as follows:

Count 2, between 24 and 29 August 2014 dealing with proceeds of crime knowing that they were proceeds, contrary to s 193B(2) of the Crimes Act 1900 (NSW), with four further offences taken into account on a Form 1: 4 years (maximum 15 years).

Count 4, a second offence of the same kind against s 193B(2), committed between 24 and 29 August 2014: 3 years and 4 months.

Count 7, a third offence against s 193B(2), committed on 22 October 2014: 3 years and 4 months.

The aggregate sentence imposed was 5 years with a non-parole period of 3 years. Commencement of the term was backdated to 26 November 2016 to allow for some days of pre-sentence custody. The aggregate sentence made allowance for a discount of 17% for the pleas of guilty entered in the District Court. Two co-offenders, James Zhu and his wife, Xia…

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 Ping He v The Queen

Details

AGLC: Ping He v The Queen [2018] NSWCCA 123
Case: [2018] NSWCCA 123
Decision Date: 22 June 2018

CaseChat Overview and Summary

The case before the court involved an appeal by Ping He against his sentence, which was imposed for dealing with proceeds of crime, in contravention of section 193B(2) of the Crimes Act 1900 (NSW), and four other offences. The appeal was heard by the High Court of Australia. The central issue before the court was whether the sentencing judge had failed to properly consider the subjective factors in He's case, despite the fact that he received the same aggregate sentence as his co-offender. He's subjective circumstances were more favourable than those of his co-offender, who had fewer offences listed on a Form 1.

The court examined the sentencing process, focusing on whether the judge had failed to adequately consider He's subjective case. It was noted that both He and his co-offender were sentenced on the same principal charges and received the same aggregate sentence. However, the court had to determine if the disparity in the number of additional offences considered on a Form 1 for each offender resulted in a "justifiable sense of grievance" for He. The court assessed whether the sentencing judge's approach to the case was flawed due to the failure to properly account for He's subjective circumstances, which were more favourable than those of his co-offender.

The court concluded that the sentencing judge had not failed to give proper effect to He's subjective circumstances in determining his sentence. The court held that the aggregate sentence imposed was appropriate in the circumstances, and there was no disparity that would give rise to a "justifiable sense of grievance." As a result, the appeal was dismissed. The court found that the sentencing judge had adequately balanced all relevant factors, including He's subjective circumstances, in arriving at the sentence imposed. The decision affirmed the importance of considering both objective and subjective factors in sentencing, while also recognising that disparities between co-offenders do not necessarily indicate an error in the sentencing process.

Orders