Shen v R

Case [2009] NSWCCA 251 30 September 2009

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
SHEN, David Ying v R [2009] NSWCCA 251

FILE NUMBER(S):
2008/1009

HEARING DATE(S):
14 July 2009

JUDGMENT DATE:
30 September 2009

PARTIES:
David Ying Shen (App)
The Crown (Resp)

JUDGMENT OF:
Hodgson JA Howie J Fullerton J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/1009

LOWER COURT JUDICIAL OFFICER:
Hulme DCJ

LOWER COURT DATE OF DECISION:
18 April 2008

COUNSEL:
T Game SC (App)
N Adams (Resp)

SOLICITORS:
Horowitz & Bilinsky Solicitors (App)
Commonwealth Director of Public Prosecutions (Resp)

CATCHWORDS:
CRIMINAL LAW
appeal against sentence
offences under Commonwealth Criminal Code and Drug Misuse and Trafficking Act (NSW)
traffic commercial quantity of a controlled drug
supply commercial quantity of a prohibited drug
parity with co-offender sentenced in Queensland
partial accumulation of sentences

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985

CATEGORY:
Principal judgment

CASES CITED:
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Lowe v R [1984] HCA 46; 154 CLR 606
Pham v R [2009] NSWCCA 25
Postiglione v R [1997] HCA 26; 189 CLR 295
R v Kerr [2003] NSWCCA 234
R v To [2007] NSWCCA 200; 172 A Crim R 121
SZ v R [2007] NSWCCA 19; 168 A Crim R 249

TEXTS CITED:

DECISION:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The sentence for the State offence is confirmed.
4. The sentence for the Commonwealth offence is quashed and in lieu the following sentence is imposed:
In respect of the offence of trafficking in a commercial quantity of 3,4 methylenedioxymethamphetamine the applicant is sentenced to imprisonment for 11 years with a non-parole period of 7 years. The sentence is to date from 20 March 2007. The applicant will be eligible for release on parole on the expiry of the non-parole period on 19 March 2014.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/1009
HODGSON JA
HOWIE J
FULLERTON J
30 SEPTEMBER 2009

DAVID YING SHEN v R

JUDGMENT

HODGSON JA: I agree with Fullerton J.
HOWIE J: I agree with Fullerton J.
FULLERTON J: This is an application for leave to appeal against sentences imposed after the applicant entered pleas of guilty in the District Court to two offences. The first alleged trafficking in a commercial quantity of a border controlled drug, namely MDMA contrary to s 302.2(1) of the Criminal Code Act 1995 (Cth) (“the Commonwealth offence”) and the second knowingly taking part in the supply of a large commercial quantity of MDMA contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the State offence”).
The quantity of MDMA the subject of the Commonwealth offence involved the distribution of the drug in the form of 230,000 tablets. Under the Criminal Code the weight of a controlled drug is specified by reference to its purity. The gross weight of the tablets was calculated at 61 kilograms with a…

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 Shen v R

Details

AGLC: Shen v R [2009] NSWCCA 251
Case: [2009] NSWCCA 251
Decision Date: 30 September 2009

CaseChat Overview and Summary

The appeal in Shen v R concerns the sentencing of the appellant for offences related to the trafficking and supply of commercial quantities of controlled substances under both Commonwealth and NSW legislation. The appellant was a part of a drug importation syndicate that involved several Canadian nationals, and he played a role in the distribution of the drugs within Australia. The court was asked to review the sentence imposed by the trial judge and determine if it was appropriate in light of the circumstances and the sentences of co-offenders in other jurisdictions. The appellant did not challenge the order for partial accumulation of sentences or the decision to sentence for the state offence after the Commonwealth offence, assuming the Commonwealth offence was more serious.

The legal issues before the court included whether the trial judge erred in imposing a particular sentence and if the sentence should be reduced in light of the appellant's role in the syndicate and the sentences of co-offenders in other jurisdictions. The court was also required to consider if the appellant should be re-sentenced for the state offence if the appeal against the Commonwealth offence sentence was successful. The appellant did not provide specific submissions for re-sentencing in the event of a successful appeal.

In delivering the judgment, the court found that the appellant's role in the syndicate was significant but did not warrant the imposition of the highest available penalty. The court considered the appellant's role, the nature of the offences, and the sentences imposed on co-offenders in other jurisdictions. The court held that the appellant's sentence should be reduced. The court also noted that the appellant did not challenge the order for partial accumulation of sentences or the sequence of sentencing, implying that the Commonwealth offence sentence would subsume the state offence sentence as the more severe penalty.

The final orders of the court were to reduce the appellant's sentence for the Commonwealth offence and maintain the sentence for the state offence as it was. The court did not address re-sentencing for the state offence as the appellant did not provide submissions on this matter in the event of a successful appeal against the Commonwealth offence sentence.

Orders

Orders of the court

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Background

Background to the litigation

It was submitted that if the first ground of appeal succeeds then, at the very least, the head sentence imposed in respect of the Commonwealth offence should be reduced. If the Court were persuaded that the applicant should be re-sentenced, the applicant advanced no submission as to how we should approach any re-sentencing for the State offence. The applicant did not challenge the order for partial accumulation, or sentencing for the two offences in reverse date order, it being assumed that the Commonwealth offence would subsume the State offence as the objectively more serious offence. The facts upon which sentence was passed The members of the syndicate that imported the drugs comprised four Canadian nationals: Handlen, Reed, Nerbas and Paddison. The drugs were shipped by sea in a container which had been packed with computer monitors some of which had their picture tube removed and into which the packages of drugs had been inserted prior to the computer monitor being resealed for shipping. Handlen had the leading role in the arrangements for both importations and was also responsible for the disposition of the drugs in Australia. Reed had some background in the business of recycling computer equipment in Canada. He was originally recruited to provide advice as to the suitability of the use of the computer equipment to secrete the drugs. Thereafter his role escalated to the point where Handlen was the only person senior to him. Handlen and Reed came to Australia on 6 April 2006 to progress arrangements for the arrival of the drugs and to take possession of the drugs on their arrival. Nerbas was resident in Queensland during 2006 where he carried on an internet sales business. A company was incorporated in Queensland (RCC Pty Ltd) for the purposes of the importation with Reed and Nerbas as directors. The shipping container was consigned to that company. Reed and Nerbas also leased commercial office and storage premises in Brisbane. After the arrival of the container Reed, Handlen and Nerbas unloaded the computer monitors and stacked them in the storage unit. Within days the drugs (including the cocaine) were removed and stored in cardboard boxes inside the premises. The following day what was referred to in the evidence as a “green Woolworth’s shopping bag” was packed with a number of packages of MDMA containing a total of 30,000 tablets which Handlen told Reed was to be given to someone who had come from Sydney to “get the samples”. The shopping bag was given to the applicant. A few days later the balance of the MDMA, comprising 200,000 tablets, was packed into two duffel bags by Reed, Handlen and Nerbas and taken to Reed’s rented apartment. Handlen instructed Reed that the person who was to collect the bags had been provided with Reed’s telephone number to enable him to be directed to the apartment. The applicant telephoned Reed and obtained those directions. Later that evening, the two duffel bags were given to a young Asian man. Reed later confirmed with the applicant that the transfer had been effected.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Shen v R [2009] NSWCCA 251

Most Recent Citation

R v Handlen [2015] QCA 292

Cases Citing This Decision

R v Nakash [2017] NSWCCA 196
Citation 1 (Para 72)

…In Shen v R [2009] NSWCCA 251, the applicant had pleaded guilty to two offences: the Commonwealth offence of trafficking a commercial quantity of MDMA, and the State offence of knowingly taking part in the supply of a large commercial quantity of that prohibited drug. Each offence carried a maximum penalty of impris…
Cicero Olivares v The Queen [2016] NSWCCA 270
Citation 2 (Para 25)

…In Shen, David Ying v R [2009] NSWCCA 251 a sentence of 11 years with a non-parole period of 7 years was affirmed for a single count under s 302.2(1) concerning the quantity of MDMA in tablet form equivalent to 7.5 kg (pure). Shen’s involvement in the drug distribution syndicate was at a high level, near to the topm…
R v Handlen [2015] QCA 292
Citation 3 (Para 19)

…rs imprisonment. The maximum penalty for both offences was life imprisonment. Shen’s convictions did not relate to cocaine. [47] Shen v The Queen [2009] NSWCCA 251.…
Kwon v R [2011] NSWCCA 58
Citation 4

…SWCCA 111; (1999) 46 NSWLR 346 R v Kairouz [2005] NSWCCA 247 R v Scott [2005] NSWCCA 152 R v Shi [2004] NSWCCA 135 Saad v R [2007] NSWCCA 98 Shen v R [2009] NSWCCA 251 Stoeski v R [2008] NSWCCA 230 Tan v R [2010] NSWCCA 207 Category: Principal judgment Parties: Joseph Kwon (Applicant) Regina (Respondent) Representat…
R v Green [2010] NSWCCA 313
Citation 5 (Para 2)

…of Taylor and Green, the case is one where considerations of relative parity should be taken into account – see Jimmy v R at [246], [268]; Shen v R [2009] NSWCCA 251 at [33].…
R v Yip and Lam [2010] NSWDC 325
Citation 6

…95 ss 302.2(1) Crimes Act (Commonwealth) 1914 CASES CITED: Hili v The Queen, Jones v The Queen [2010] HCA 45 Maldonado v R [2009] NSWCCA 185 Shen v R [2009] NSWCCA 251 X and Y [2002] NSWCCA 40 Reardon, Michaels and Taylor [2002], NSWCCA 203 Mazzitelli [2002] NSWCCA 436 Leong [2003] NSWCCA 51 Shepherd [2003] NSWCCA 2…
Jimmy v R [2010] NSWCCA 60
Citation 7

…Rend v The Queen [2006] NSWCCA 41; (2006) 160 A Crim R 178 Rexhaj (NSWCCA, 29 February 1996, unreported) Sharpe v The Queen [2002] NSWCCA 96 Shen v R [2009] NSWCCA 251 Slaughter- House Cases, 83 U.S. 36 (1873) Stanton v The Queen [2008] NSWCCA 326 Sumner v R (1985) 19 A Crim R 210 Tatana v R [2006] NSWCCA 398 Thorle…
Commonwealth Service Delivery Agency v Marcus John Braszell [2009] NSWLC 13
Citation 8

…Queen (2002) 209 CLR 339 Charkowi [2008] NSWCCA 159 Grenfell [2008] NSWCCA 162Hinton (2002) 134 A Crim R 286 Ivanovic [2009] NSWCCA 28 Shen [2009] NSWCCA 251To [2007] NSWCCA 200 Zamagias [2002] NSWCCA 17 TEXTS CITED: REPRESENTATION: Ms Chan for the DPP (Cth) (on sentence) Mr P Robb, Solicitor of Robb & Associates So…

See all citing cases →

Cases Cited

Pham v R [2009] NSWCCA 25
Citation 1 (Para 2)

…a different factual basis and that this approach was entirely in keeping with the line of authority most recently considered by Latham J in Pham v R [2009] NSWCCA 25 at [28] – [45]. The Crown submitted that the applicant was seeking to extend the application of the parity principle beyond that of co-offenders cont…
Kauwenberghs v R [2008] NSWCCA 98
Citation 2 (Para 4)

…n charged with less offences than the co-offender. The statement was also endorsed in Yin v R [2007] NSWCCA 350 at [23]–[24], in Kauwenberghs v R [2008] NSWCCA 98 at [109] and referred to in McGuiness v R [2008] NSWCCA 80. In the latter case there was no disparity arising where one offender had been dealt with summ…
Yassine v R [2008] NSWCCA 139
Citation 3 (Para 4)

…offence, as is done in this appeal, is attended with difficulty. 35 For completeness I note that Kerr was referred to in Yassine v R [2008] NSWCCA 139 and a small part of the judgment of Miles AJ quoted, but without critical comment. But the argument on parity failed and the appeal was dismissed. Similarly, Formosa…
Holden v R [2008] NSWCCA 100
Citation 4 (Para 4)

…and the appeal was dismissed. Similarly, Formosa and Spinks were referred to by Buddin J (Basten and Barr JJ agreeing) in Holden v R [2008] NSWCCA 100 at [38] with apparent approval and the appeal was dismissed. 36 In my opinion, if Kerr has any applicability, it must be in a very limited class of case. This Court…
McGuiness v R [2008] NSWCCA 80
Citation 5 (Para 4)

…ement was also endorsed in Yin v R [2007] NSWCCA 350 at [23]–[24], in Kauwenberghs v R [2008] NSWCCA 98 at [109] and referred to in McGuiness v R [2008] NSWCCA 80. In the latter case there was no disparity arising where one offender had been dealt with summarily and the other on indictment. In Yin Barr J stated at…
Yin v R [2007] NSWCCA 350
Citation 6 (Para 4)

…s rejected in circumstances where one offender had been charged with less offences than the co-offender. The statement was also endorsed in Yin v R [2007] NSWCCA 350 at [23]–[24], in Kauwenberghs v R [2008] NSWCCA 98 at [109] and referred to in McGuiness v R [2008] NSWCCA 80. In the latter case there was no disparit…
R v To [2007] NSWCCA 200
Citation 7 (Para 6)

…ntences are markedly out of step with sentences imposed in this state for importing commercial quantities of a border controlled drug (see R v To [2007] NSWCCA 200; 172 A Crim R 121 where Hulme and Hall JJ reviewed a number of recent sentences where commercial quantities of MDMA were imported and where significantly…
Spinks v R [2007] NSWCCA 52
Citation 8 (Para 4)

…ld be very cautious before proposing or adopting any such principle. 34 The statement of caution made by Simpson J above was repeated in Spinks v R [2007] NSWCCA 52 where a complaint of disparity was rejected in circumstances where one offender had been charged with less offences than the co-offender. The statement…
SZ v R [2007] NSWCCA 19
Citation 9 (Para 3)

…er cent, (presumably on the basis that that a 60 per cent discount on sentence has been nominated as ‘” the maximum discount”: see SZ v R [2007] NSWCCA 19; 168 A Crim R 249) and that this may have impacted adversely on the applicant’s sentence because his Honour may have assumed a higher notional starting point for…
Cahyadi v R [2007] NSWCCA 1
Citation 10 (Para 9)

…rally been considered appropriate where there has been an order for partial accumulation of Commonwealth and State offences (see Howie J, Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [36] - [39]) as his Honour emphasised at [40] this will not always be the case. In the particular circumstances of this case, wer…
R v Formosa [2005] NSWCCA 363
Citation 11 (Para 4)

…er referring to the views of Miles AJ extracted above her Honour observed: 33 This statement of principle was considered by this Court in R v Formosa [2005] NSWCCA 363. There the applicant was charged with malicious infliction of grievous bodily harm in company. The co-offender, Wood, was dealt with as an accessory…
R v Kerr [2003] NSWCCA 234
Citation 12 (Para 3)

…ant complained that his sentence on the supply count should be reduced in light of the sentences imposed on his co-offenders. He relied upon R v Kerr [2003] NSWCCA 234, a decision that addresses the application of the parity principle where co-offenders are charged with different offences. In Kerr Miles AJ, with who…
Postiglione v the Queen [1997] HCA 26
Citation 13 (Para 1)

…sentences of the applicant and Reed is required in order to reflect the principle of equal justice. The applicant relied upon Postiglione v R [1997] HCA 26; 189 CLR 295 where at 301 Dawson and Gaudron JJ said: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justi…
Lowe v R [1984] HCA 46
Citation 14 (Para 1)

…as also submitted that irrespective of whether there is any difference in the approach to the sentencing of co-offenders mandated by Lowe v R [1984] HCA 46; 154 CLR 606 and the approach to the sentence of offenders involved in a course of criminal conduct in circumstances where, despite differences in the type o…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Criminal Code Act 1995 (Cth)
1 mention (from Para 3)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 3)