Shi v The Queen - [2017] NSWCCA 183

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shi v R [2017] NSWCCA 183
Hearing dates: 21 July 2017
Date of orders: 04 August 2017
Decision date: 04 August 2017
Before: Hoeben CJ at CL at [1]
Adamson J at [2]
Bellew J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – Appeal – Sentence – Parity - Where co-offenders participated in drug supply – Where each offender played a different role in the enterprise – Where applicant’s role higher than that of the co-offenders – No justifiable sense of grievance – Leave to appeal granted – Appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Why v R [2017] NSWCCA 101
Category: Principal judgment
Parties: Zie Pie Shi – Applicant
Crown – Respondent
Representation:
Counsel:
G E Smith SC – Applicant
N Adams - Respondent
Solicitors:
Jeffreys Lawyers – Applicant
C Hyland, Solicitor for Public Prosecutions – Respondent

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

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 October 2015

Before:

Acting Judge Hosking SC

Judgment

HOEBEN CJ AT CL: I agree with Bellew J.
ADAMSON J: I agree with Bellew J.
BELLEW J: Zie Pie Shi (“the applicant”) pleaded guilty before the Local Court to an offence contrary to s. 25(2) of the Drug Misuse and Trafficking Act 1985(NSW) in the following terms:

Between 12pm on 5 February 2014 and 4.45pm on 16 April 2014 at Sydney in the State of New South Wales did knowingly take part in the supply of an amount of a prohibited drug, to wit, 2545gms (2.545kgs) of Methylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

The applicant adhered to that plea before the District Court and asked that a further offence of participating in a criminal group contrary to s. 93T(1A) of the Crimes Act 1900 (NSW) be taken into account on sentence.
On 16 October 2015 the applicant was sentenced by Acting Judge Hosking SC to a non-parole period of 7 years imprisonment with an additional term of 3 years. He now seeks leave to appeal against his sentence on a single ground, namely that the sentence is too severe having regard to what is said to be an unjustified disparity with the sentences imposed upon his co-offenders.

The facts of the offending

The sentencing judge found the facts of the offending to be as follows (commencing at ROS 2):

Between 5 February 2014 and 11 April 2014 the offender supplied various amounts of methylamphetamine he obtained from Chan to undercover operatives using Mohammad to carry out the actual deliveries. There were the following transactions:
On 5 February 2014 the offender supplied through Mohammad one ounce, that is to say 27.9 grams of methylamphetamine to an undercover operative for $7,500 at Croydon Park.
On 5 March 2014…

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 [2017] NSWCCA 183
Case: [2017] NSWCCA 183
Decision Date: 04 August 2017

CaseChat Overview and Summary

In Shi v The Queen, the appellant, Shi, sought to appeal against the sentence imposed by the Supreme Court of Victoria. Shi was convicted of offences relating to the supply of a commercial quantity of methylamphetamine, in which he participated alongside two co-offenders. The court was tasked with determining whether the sentence imposed was manifestly excessive, and whether it was appropriate to grant leave to appeal on the basis of parity with co-offenders.

The primary legal issue before the court was whether the sentence imposed on Shi was manifestly excessive, given the roles and contributions of Shi and his co-offenders in the drug supply enterprise. The court was required to consider the principles of parity and proportionality in sentencing, as well as the specific circumstances of Shi's involvement in the offence. The court also had to assess whether there was a justifiable sense of grievance on the part of Shi in relation to the sentence.

The court found that Shi's role in the drug supply enterprise was more significant than that of his co-offenders, and that there was no justifiable sense of grievance on his part. The court held that the sentence imposed was not manifestly excessive, and that there were no grounds to grant leave to appeal on the basis of parity with co-offenders. The court found that the sentence reflected the seriousness of the offence, and that it was proportionate to the appellant's role and culpability. The appeal was dismissed.

The court did not make any orders in relation to the appeal.

Orders