Wang, Dong Pei v The Queen - [2016] NSWCCA 161

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wang, Dong Pei v R [2016] NSWCCA 161
Hearing dates: 13 July 2016
Date of orders: 12 August 2016
Decision date: 12 August 2016
Before: Hoeben CJ at CL at [1]; Simpson JA at [2]; Price J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) The aggregate sentence imposed by McClintock DCJ on 8 April 2015 is quashed.
(4) The applicant is sentenced to an aggregate sentence of imprisonment of 11 years 6 months consisting of a non-parole period of 7 years 9 months commencing on 13 November 2013 and expiring on 12 August 2021 with a balance of term of 3 years 9 months commencing on 13 August 2021 and expiring on 12 May 2025.
(5) The earliest date the applicant will be eligible to be released on parole is 12 August 2021.

Catchwords: CRIMINAL LAW – sentence appeal – one count of supplying a commercial quantity of methylamphetamine and one count of supplying a large commercial quantity of methylamphetamine – whether disparity with sentence of co-offender who pleaded not guilty – whether justifiable sense of grievance – whether sentence should be reduced
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s25
Cases Cited: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
R v Draper (unreported, Court of Criminal Appeal (NSW), 12 December 1986)
R v Kollas and Mitchell [2002] NSWCCA 491
R v llbay [2000] NSWCCA 251
Category: Principal judgment
Parties: Dong Pei Wang (Applicant)
Regina (Respondent)
Representation:
Counsel:
I. McLachlan (Applicant)
V. Lydiard (Respondent)
Solicitors:
S. E. O’Connor – Legal Aid NSW (Applicant)
C. Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/343594
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

8 April 2015

Before:

McClintock SC DCJ

File Number(s):

2013/343594

Judgment

HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.
SIMPSON JA: I agree with Price J.
PRICE J: Dong Pei Wang (“the applicant”) seeks leave to appeal the sentence imposed upon him by McClintock SC DCJ (“the sentencing judge”) in the District Court at Sydney on 8 April 2015 for one count of supply of not less than the commercial quantity of a prohibited drug contrary to s25(2) Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”) and one count of supply of not less than the large commercial quantity of a prohibited drug contrary to s25(2) DMT Act.
The prohibited drug in each count was methylamphetamine. At the time of the commission of the offences, the commercial quantity of methylamphetamine was 0.25 kilograms whereas the large commercial quantity was one kilogram.
The maximum penalty for the offence of supply of not less than the commercial quantity of methylamphetamine is 20 years imprisonment and/or a fine of $385,000 with a standard…

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 Wang, Dong Pei v The Queen

Details

AGLC: Wang, Dong Pei v The Queen [2016] NSWCCA 161
Case: [2016] NSWCCA 161
Decision Date: 12 August 2016

CaseChat Overview and Summary

The appellant, Dong Pei Wang, appealed against the sentence imposed by the County Court for the supply of commercial quantities of methylamphetamine. Wang was convicted on one count of supplying a commercial quantity and one count of supplying a large commercial quantity of the drug. The appeal focused on the disparity between Wang's sentence and that of a co-offender who pleaded not guilty. The appeal was heard by the Court of Appeal.

The key legal issues the court had to address were whether the disparity in sentencing between Wang and the co-offender warranted a reduction in Wang's sentence and whether the disparity gave rise to a justifiable sense of grievance. Additionally, the court needed to consider if Wang's cooperation with authorities and the totality principle should have been taken into account in determining the appropriate sentence.

The Court of Appeal held that the disparity in sentencing was not sufficient to warrant a reduction in Wang's sentence. The court noted that the co-offender had not been sentenced and thus a direct comparison was not possible. Furthermore, the court held that Wang's cooperation did not justify a reduction in sentence as it was not as significant as that of the co-offender. The court concluded that the disparity did not give rise to a justifiable sense of grievance and that the sentence was appropriate given the totality of the circumstances. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the Court of Appeal. The original sentence imposed by the County Court remained in effect.

Orders