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 251Category: Principal judgment Parties: Dong Pei Wang (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
I. McLachlan (Applicant)
V. Lydiard (Respondent)
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
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HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.
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SIMPSON JA: I agree with Price J.
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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.
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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.
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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…
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- AGLC
- Wang, Dong Pei v The Queen [2016] NSWCCA 161
- Case
- [2016] NSWCCA 161
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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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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