Shi v The Queen - [2020] NSWCCA 42

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Shi v R [2020] NSWCCA 42
Hearing dates: 9 March 2020
Decision date: 19 March 2020
Before: R A Hulme J at [1]
Adamson J at [29]
Ierace J at [30]
Decision:
Appeal against sentence dismissed.

Catchwords: CRIME – appeal against sentence – co-offenders – disparity between sentences – disparity justified once regard had to different objective and subjective circumstances – no legitimate sense of grievance – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 93T(1A)
Crimes (Appeal and Review) Act 2001 (NSW), ss 79(1)(b), 79(2)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited: Buttrose v Attorney General of New South Wales [2015] NSWCA 221
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
R v San Sang Chan (District Court (NSW), 26 October 2017, unrep)
Shi v Attorney-General for New South Wales [2019] NSWSC 1686
Shi v R [2017] NSWCCA 183
Category: Principal judgment
Parties: Zi Pei Shi (Appellant)
Regina (Respondent)
Representation:
Counsel:
Mr G Smith SC (Appellant)
Ms M Kumar (Crown)
Solicitors:
Jeffreys Lawyers
Solicitor for Public Prosecutions

File Number(s): 2014/116673
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

16 October 2015

Before:

Hosking SC ADCJ

File Number(s):

2014/116673

Judgment

R A HULME J: Zi Pei Shi appeals against a sentence imposed upon him in the District Court for an offence of knowingly taking part in the supply of a large commercial quantity of methylamphetamine.
At the appellant’s request, a further offence of participating in a criminal group, contrary to s 93T(1A) of the Crimes Act 1900 (NSW), was taken into account.
The primary offence is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment for life (and/or a fine of 5,000 penalty units). There is also a standard non-parole period (SNPP) of 15 years.
On 16 October 2015, his Honour Acting Judge Hosking SC imposed a sentence of imprisonment for 10 years with a non-parole period of 7 years, dating from 16 April 2014.
The judge took into account the appellant's early plea of guilty and assistance to authorities and reduced the sentence by one-third. The sentence would otherwise have been one of 15 years.
The appellant had previously been granted leave to appeal against the sentence but the appeal was dismissed: Shi v R [2017] NSWCCA 183. That appeal was based upon a sole ground contending that the sentence was too severe having regard to an unjustified disparity with the sentences imposed upon two co-offenders. Those co-offenders were Moheen Mohammed and Tony So. It was held by Bellew J, with whom the other members of the court agreed, that the differences in the sentences imposed were justifiable, having regard to the nature of the offending and the personal circumstances of the three offenders.
When that appeal was determined on 4 August 2017, 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 Shi v The Queen

Details

AGLC: Shi v The Queen [2020] NSWCCA 42
Case: [2020] NSWCCA 42
Decision Date: 19 March 2020

CaseChat Overview and Summary

In the High Court of Australia, the appeal by Shi against her sentence arose from a criminal conviction. Shi was one of several individuals involved in a drug trafficking operation. The primary dispute in the case centred on the disparity between the sentences handed down to Shi and her co-offenders. The legal issues before the Court were whether the sentencing disparities between Shi and her co-offenders were justified and whether the disparity created a legitimate sense of grievance.

The Court examined the sentencing principles applicable to co-offenders and the factors that justified disparities in sentences. It noted that sentencing disparities could be justified if the court took into account the different objective and subjective circumstances of each offender. The Court held that, in this case, the sentencing judge had appropriately considered the varying roles and levels of culpability of Shi and her co-offenders. The disparities in sentences were justified based on these factors. The Court concluded that Shi's appeal against her sentence did not reveal any legitimate sense of grievance, and the sentencing disparities were proportionate to the different roles and culpability of the offenders involved. Consequently, the appeal was dismissed.

Orders