Wan v R

Case [2017] NSWCCA 261 8 November 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wan v R [2017] NSWCCA 261
Hearing dates: 15 September 2017
Date of orders: 08 November 2017
Decision date: 08 November 2017
Before: Payne JA at [1];
Beech-Jones J at [2];
Fagan J at [53]
Decision:
(1) Leave to appeal against sentence be granted.
(2) The appeal be dismissed.
Catchwords: SENTENCING – parity – applicant pleaded guilty to manufacture and supply large commercial quantity of prohibited drugs – co-offender pleaded guilty to importation of same drugs – applicant and co-offender received similar sentences even though applicant pleaded guilty at earlier stage – application of parity principle to offender charged with State offences and co-offender charged with Commonwealth offences – comparison of roles and position in hierarchy – no justifiable sense of grievance – appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: DS v R [2014] NSWCCA 267
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 606
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Saleh [2015] NSWCCA 299
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Category: Principal judgment
Parties: Wai Man Wan (Applicant)
The Queen (Respondent)
Representation:
Counsel:
J Stratton SC (Applicant)
L Crowley; G Wright (Respondent)
Solicitors:
Proctor & Associates (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2013/185153
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 August 2016

Before:

Lakatos SC DCJ

File Number(s):

2013/185153

Judgment

PAYNE JA: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by Judge Lakatos SC on 19 August 2016 for two drug offences, namely knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (“DMTA”) and supplying a prohibited drug in an amount not less than the large commercial quantity, contrary to s 25(2) of the DMTA. With both offences the prohibited drug was methylamphetamine. The maximum penalty for each offence was life imprisonment and 5000 penalty units (DMTA; s 33(3)(a)). Each offence carried a standard non-parole period of 15 years’ imprisonment (Crimes (Sentencing Procedure) Act 1999; s 54A, the “Sentencing Act”).
For the supply offence the applicant was sentenced to imprisonment for 12 years commencing 17 June 2013 with a non-parole period of 9 years’ imprisonment. For the manufacture offence the applicant was sentenced to imprisonment for 18 years commencing 17 June 2016 with a non-parole period of 12 years’ imprisonment. The effect of these two sentences is that the applicant was sentenced to 21 years imprisonment with a non-parole period of 15 years. He will…

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 Wan v R

Details

AGLC: Wan v R [2017] NSWCCA 261
Case: [2017] NSWCCA 261
Decision Date: 08 November 2017

CaseChat Overview and Summary

The case of Wan v R involved an applicant who had pleaded guilty to the manufacture and supply of a large commercial quantity of prohibited drugs, while a co-offender pleaded guilty to the importation of the same drugs. Both received similar sentences, despite the applicant's earlier guilty plea. The applicant contested the sentence on the grounds that the principle of parity, which dictates that similarly situated offenders should receive similar sentences, was not properly applied. The applicant argued that the co-offender, charged with Commonwealth offences, should have received a harsher sentence due to the nature and severity of their respective roles.

The court examined the principle of parity and how it applies to an offender charged with state offences and a co-offender charged with Commonwealth offences. The applicant claimed that the principle of parity should have mandated a harsher sentence for the co-offender, considering their role in the importation of the drugs. However, the court found that both the applicant and the co-offender played significant roles in the drug trafficking operation, albeit in different capacities. The applicant's argument that the co-offender should have been sentenced more severely was rejected, as the court found no justifiable sense of grievance in the application of the parity principle in this instance.

The court's reasoning was that both parties were integral to the drug trafficking operation and that their roles, while distinct, were equally significant in the context of the operation. The applicant's earlier guilty plea did not warrant a more severe sentence for the co-offender. The appeal was dismissed, affirming the sentences imposed on both the applicant and the co-offender. The court concluded that the sentences were appropriate given the roles and positions of the parties in the hierarchy of the drug trafficking operation.

Orders