R v Wong

Case [2018] NSWCCA 20 2 March 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Wong [2018] NSWCCA 20
Hearing dates: 7 February 2018
Date of orders: 02 March 2018
Decision date: 02 March 2018
Before: Beazley P at [1]
Garling J at [2]
Hidden AJ at [98]
Decision:
(1)   Appeal upheld.
(2)   Quash the sentence imposed by Delaney A‑DCJ on 11 September 2017.
(3)   In lieu, impose upon the respondent an aggregate sentence of 4 years non-parole with a balance of term of 2 years commencing from 8 August 2016. The total sentence to expire on 7 August 2022 with a non-parole period expiring on 7 August 2020.

Catchwords: CRIME – Crown appeal against sentence – supply prohibited drug – ongoing supply prohibited drug – Drug Misuse and Trafficking Act 1985 ss 25(1) and 25A – knowingly direct criminal activities of a criminal group – Crimes Act 1900 s 93T(4A) – whether aggregate sentence manifestly inadequate – whether sentencing Judge erred in failing to give adequate weight to general deterrence – whether sentence reflected additional criminality of offence on Form 1 – whether sentencing Judge erred in failing to appropriately accumulate multiple offences – whether sentencing Judge erred in extent of statutory variation of head sentence to non-parole period ratio – appeal allowed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Brown v R [2010] NSWCCA 73
Bugmy v The Queen [2013] HCA; (2013) 249 CLR 571
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Parente v R [2017] NSWCCA 284
PD v R [2012] NSWCCA 242
R v AB [2017] NSWCCA
R v Brown [2012] NSWCCA 199
R v Burns [2007] NSWCCA 228
R v Cahill [2015] NSWCCA 53
R v GWM [2012] NSWCCA 240
R v Pickett [2010] NSWCCA 273
R v Rae [2013] NSWCCA 9
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; 126 A Crim R 525
Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Crown
Kevin Yeh Wong (Respondent)
Representation:
Counsel:
N Adams (Crown)
H Dhanji SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Benjamin & Leonardo Solicitors (Respondent)

File Number(s): 2016/238753
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 September 2017

Before:

Delaney A-DCJ

File Number(s):

2016/238735

Judgment

BEAZLEY P: I agree with Garling J’s reasons and his Honour’s proposed orders.
GARLING J: This is a Crown appeal pursuant to s 5D(1) of the Criminal Appeal Act 1912 against an aggregate sentence imposed in the District Court by Acting Judge Delaney on 11…

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 R v Wong

Details

AGLC: R v Wong [2018] NSWCCA 20
Case: [2018] NSWCCA 20
Decision Date: 02 March 2018

CaseChat Overview and Summary

The case involved the Commonwealth, as the appellant, appealing against the sentence handed down to the respondent, Wong, by a lower court. Wong had been found guilty of multiple charges, including the supply of a prohibited drug, engaging in ongoing criminal activity, and directing the criminal activities of a criminal group. The appeal was heard in the Court of Criminal Appeal. The central issue before the court was whether the sentence imposed by the lower court was manifestly inadequate, taking into account the nature and circumstances of the offences. The court had to consider whether the sentencing judge had erred by not sufficiently accounting for the general deterrence of such criminal activities, whether the sentence properly reflected the additional criminality of the offence, whether the sentencing judge had erred in not appropriately accumulating the multiple offences, and whether the extent of the statutory variation of the head sentence to the non-parole period ratio was appropriate.

The court concluded that the sentencing judge had indeed erred in several respects. The court found that the sentence imposed did not adequately reflect the need for general deterrence, particularly given the severity of the crimes committed. The court also determined that the sentencing judge had not given sufficient weight to the additional criminality of the offence as outlined in the Form 1. Furthermore, the court found that the sentencing judge had not appropriately accumulated the multiple offences, resulting in a sentence that did not fully reflect the totality of the respondent's criminal conduct. Finally, the court held that the extent of the statutory variation of the head sentence to the non-parole period ratio was not justified in light of the errors identified.

Consequently, the Court of Criminal Appeal allowed the appeal, quashed the original sentence, and remitted the matter to the lower court for resentencing. The court emphasised the importance of ensuring that sentences for serious drug-related offences adequately reflect the need for general deterrence, the totality of the offender's criminal conduct, and the appropriate accumulation of multiple offences. The court did not specify the exact nature of the new sentence but directed that the resentencing should address the identified errors.

Orders