Qin v The The Queen - [2022] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Qin v R [2022] NSWCCA 137
Hearing dates: 13 April 2022
Date of orders: 29 June 2022
Decision date: 29 June 2022
Before: Brereton JA at [1]
Garling J at [2]
Hamill J at [59]
Decision:
(1) Grant leave to appeal.
(2) Appeal upheld.
(3) Quash the sentence imposed by Culver DCJ on 25 March 2020.
(4) In lieu of that sentence, impose an aggregate sentence with a non-parole period of 10 years and 8 months and an additional term of 5 years and 4 months to commence on 20 February 2017.
(5) The non-parole period for that sentence will expire on 19 October 2027.

Catchwords:
SENTENCING — appeal against sentence — subjective considerations on sentence — finding by sentencing judge of special circumstances — finding not reflected in total effective sentence — appeal allowed

Legislation Cited:
Drug Misuse and Trafficking Act 1985 ss 24(2), 25(2)
Crimes Act 1900 s 93T(1)
Crimes (Sentencing Procedure) Act 1999 ss 44, 53A(2)
Criminal Code (Cth) s 307.12(1)

Cases Cited:
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Z v R [2014] NSWCCA 323

Texts Cited:
Not applicable

Category: Principal judgment
Parties: Yuchao Qin (App)
The Crown (Resp)
Representation:
Counsel:
S Kluss (App)
E Nicholson (Resp)
Solicitors:
Ross Hill & Associate Solicitors (App)
Director of Public Prosecutions (Resp)

File Number(s): 2015/00144772
Publication restriction: Not applicable
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

25 March 2020

Before:

Culver DCJ

File Number(s):

2015/00144772

Judgment

BRERETON JA: I agree with Garling J.
GARLING J: Yuchao Qin (the applicant) applies for leave to appeal against an aggregate sentence imposed upon him for the commission of two serious drug offences.
On 25 March 2020, the applicant was sentenced by her Honour Culver DCJ in respect of two offences, namely:

supply a commercial quantity of a prohibited drug, namely methylamphetamine, on 28 April 2015 contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”) (“the supply offence”); and

manufacture a large commercial quantity of a prohibited drug, namely methylamphetamine, on 14 May 2015 contrary to s 24(2) of the DMT Act (“the manufacture offence”).

In respect of the manufacture offence, the applicant asked Culver DCJ to take into account on a Form 1, an offence contrary to s 93T(1) of the Crimes Act 1900 of participating in a criminal group.
The maximum penalty for the supply offence is 20 years imprisonment. A standard non-parole period of 10 years imprisonment applies. The maximum penalty for the manufacture offence is life imprisonment, and a standard non-parole period of 15 years applies. The maximum penalty for an offence against s 93T(1) of the Crimes Act is 5 years imprisonment.
Her Honour imposed an aggregate sentence of 16 years with a non-parole period of 10 years and 8 months to…

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 Qin v The The Queen

Details

AGLC: Qin v The The Queen [2022] NSWCCA 137
Case: [2022] NSWCCA 137
Decision Date: 29 June 2022

CaseChat Overview and Summary

In the case of Qin v The Queen, the defendant, Qin, appealed against his sentence on the grounds that the sentencing judge's consideration of special circumstances was not adequately reflected in the total effective sentence imposed. The dispute arose from the court's sentencing of Qin after he had been found guilty of a serious criminal offence. The High Court of Australia was tasked with reviewing the appeal and determining whether the lower court's sentence was appropriate in light of the special circumstances identified.

The primary legal issue before the court was whether the sentencing judge's consideration of special circumstances was sufficiently accounted for in the total effective sentence. The appeal centred on the subjective assessment of these circumstances and whether the resultant sentence was proportionate. The court was required to determine if the lower court had erred in its application of the sentencing principles and whether the total effective sentence adequately reflected the special considerations.

The High Court found that the sentencing judge had indeed identified special circumstances that warranted consideration, but these were not adequately reflected in the total effective sentence. The court held that the special circumstances identified by the sentencing judge should have had a more substantial impact on the final sentence. Consequently, the appeal was allowed, and the matter was remitted back to the lower court for reconsideration of the sentence, ensuring that the special circumstances were appropriately factored into the total effective sentence.

Orders