R v Wong - [2002] NSWCCA 527

Reported Decision:
137 A Crim R 120

New South Wales

Court of Criminal Appeal

CITATION: REGINA v WONG [2002] NSWCCA 527

FILE NUMBER(S): CCA 60535/00

HEARING DATE(S): 18 December 2002

JUDGMENT DATE:
18 December 2002

PARTIES :

Regina
v
Peter WONG (aka Ka KWAN)

JUDGMENT OF: Adams J at 1; Smart AJ at 14

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 93/11/1271

LOWER COURT JUDICIAL
OFFICER : Woods DCJ

COUNSEL : E A Wilkins (Crown)
P M Strickland (Applicant)

SOLICITORS:
S E O'Connor (Crown)
D J Humphreys (Applicant)

LEGISLATION CITED: Sentencing Act 1989

CASES CITED:
Regina v GDR (1994) 35 NSWLR 376
R v Bragias (1997) 92 A Crim R 330
Regina v Fahda [1999] NSWCCA 267

DECISION: Leave to appeal granted; Appeal allowed; Sentence below quashed; In lieu thereof a sentence in relation to count 1 of a period of two years' imprisonment, commencing from 23 May 2000 and expiring on 22 May 2002 and on the second count, a sentence of imprisonment of four years commencing on 22 May 2002; The applicant to be eligible for release to parole on 22 May 2004.

IN THE COURT OF

CRIMINAL APPEAL

060535/00

ADAMS J

SMART AJ

WEDNESDAY 18 DECEMBER 2002

PETER WONG (AKA KA KWAN) v REGINA (NEW SOUTH WALES)

JUDGMENT

1 ADAMS J: Two offences in respect of which the applicant was ultimately convicted were committed between 9 April and 17 April 1992. He was arrested on 28 April 1992 but for various reasons the trial did not commence until 16 May 2000 when the applicant pleaded not guilty. On 22 May 2000 the jury found the applicant guilty on both counts.

2 On 20 July 2000 the applicant was sentenced upon count 1 which was that he knowingly took part in a supply of heroin on 10 April 1992 to a fixed term of two years, commencing 23 May 2000 and expiring on 22 May 2002. On the second count, which was that the applicant knowingly took part in the supply of about a pound of heroin between 9 and 17 April 1992, he was sentenced to a term of four years imprisonment with a non-parole period of three years commencing on 22 May 2002. The learned sentencing judge ordered that the applicant will be eligible for release on 22 May 2005. The sentences were thus wholly cumulative.

3 The facts are regrettably unremarkable. An undercover officer attempted to purchase heroin. He met a drug dealer, Lee, who agreed to supply heroin. He supplied one ounce of rock heroin which had been procured by the applicant and handed over to Lee a short time before it was given to the officer. His Honour found, and it was evident, that this was a preliminary deal, Lee indicating that he could obtain larger quantities of heroin. Five days later the undercover officer and Lee agreed on the supply of a pound of heroin for $95,000. On the following day this money was handed over to Lee…

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: Regina v Wong [2002] NSWCCA 527
Case: [2002] NSWCCA 527
Decision Date: 18 December 2002

CaseChat Overview and Summary

The New South Wales Court of Criminal Appeal was asked to consider the sentence imposed upon the appellant, Peter Wong, following his conviction for two counts of drug trafficking. The offences involved the supply of heroin, with one count relating to the supply of one ounce of heroin and the other count relating to the supply of approximately one pound of heroin. The appeal was against both the sentence imposed and the length of time it took to bring the case to trial.

The key legal issues before the court were whether the delay in bringing the case to trial and the cumulation of the sentences constituted special circumstances warranting a departure from the usual sentencing principles, and whether the sentence imposed by the lower court was erroneous. The court needed to determine if the delay and cumulation of sentences justified a reduction in the non-parole period.

The court found that while the delay in bringing the case to trial and the cumulation of sentences could constitute special circumstances, there was no evidence presented to show that the delay caused any hardship to the appellant. The court held that the delay did not justify a departure from the usual sentencing ratio, and the cumulation of sentences alone did not constitute special circumstances warranting a shorter non-parole period. The court concluded that the lower court's calculation of the sentence was mistaken, leading to an error in law. Consequently, the court granted leave to appeal, allowed the appeal, quashed the sentence, and imposed a new sentence with a non-parole period that reflected the proper sentencing principles.

The final orders of the court were that the appellant would serve a period of two years' imprisonment for the first count, commencing from 23 May 2000 and expiring on 22 May 2002, and a period of four years' imprisonment for the second count, commencing on 22 May 2002. The appellant would be eligible for release to parole on 22 May 2004.

Orders