Wang v R

Case [2009] NSWCCA 223 10 September 2009

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New South Wales
Court of Criminal Appeal

CITATION: Xiao Feng WANG v R [2009] NSWCCA 223

HEARING DATE(S): 30 June 2009

JUDGMENT DATE:
10 September 2009

JUDGMENT OF: Giles JA at 1; Hidden J at 2; McCallum J at 39

DECISION: Leave to appeal granted, appeal allowed, sentence passed in District Court quashed. In lieu, applicant sentenced to imprisonment for 16 years comprising a non-parole period of 12 years, commencing on 12 July 2005 and expiring on 11 July 2017, and a balance of term of 4 years, commencing on 12 July 2017 and expiring on 11 July 2021.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - supply of large commercial quantity of ecstasy - sentencing judge's approach to standard non-parole period - whether finding of mid range objective gravity open - whether sentence manifestly excessive

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Way [2004] NSWCCA 131, 60 NSWLR 168
R v Deng [2007] NSWCCA 216, 176 A Crim R 1
R v Knight & Biuvanua [2007] NSWCCA 283, 176 A Crim R 338
Edwards v R [2008] NSWCCA 281
R v Stankovic [2006] NSWCCA 229
R v Stricke [2007] NSWCCA 179
R v Gao & Lim [2007] NSWCCA 343
R v Thompson [2005] NSWCCA 340, 156 A Crim R 467
R v Nikolic [2007] NSWCCA 232
Sukkar v R [2007] NSWCCA 298

PARTIES: Xiao Feng WANG (Applicant)
REGINA (Respondent Crown)

FILE NUMBER(S): CCA 2006/5195

COUNSEL: P Boulten SC & M Pickin (Applicant)
P Leask (Respondent Crown)

SOLICITORS: R F Bergagnin and Co Solicitors (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0126

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 3 November 2006

2006/5195

GILES JA
HIDDEN J
McCALLUM J
Thursday 10 September 2009

Xiao Feng WANG v R

Judgment

1 GILES JA: I agree with Hidden J.

2 HIDDEN J: The applicant, Xiao Feng Wang, was found guilty at trial in the District Court of the following charges:

· Supplying ecstasy in not less than the large commercial quantity, an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985, carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years;

· Supplying ecstasy in not less than the trafficable quantity, an offence under s 25(1) of that Act, carrying a maximum penalty of 15 years imprisonment.

3 He had earlier pleaded guilty to a charge of assaulting a police officer in the execution of her duty, an offence under s 58 of the Crimes Act 1900 which carries a maximum sentence of 5 years imprisonment. That offence arose out of the circumstances giving rise to the drug charges.

4 He was sentenced as follows:

· On the first charge in the indictment, supplying not less than the large commercial quantity of ecstasy, imprisonment for…

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 v R

Details

AGLC: Wang v R [2009] NSWCCA 223
Case: [2009] NSWCCA 223
Decision Date: 10 September 2009

CaseChat Overview and Summary

The case of Wang v R involved Wang, the appellant, who was convicted of supplying a large commercial quantity of ecstasy. Wang applied for leave to appeal against his sentence, which was determined by the sentencing judge. The High Court of Australia was tasked with assessing whether the appeal should proceed based on the grounds provided by Wang. The primary focus of the court's consideration was the sentencing judge's approach to the standard non-parole period and whether the finding of mid-range objective gravity was open. Additionally, the court needed to determine if the sentence imposed was manifestly excessive.

The central legal issues before the court were whether the sentencing judge's approach to determining the standard non-parole period was flawed and if the finding of mid-range objective gravity was open to challenge. Furthermore, the court had to consider whether the overall sentence was manifestly excessive, given the circumstances of the case and the principles of sentencing in Australia. The court was required to balance these considerations against the need for the sentence to reflect the seriousness of the offence and the need for general deterrence.

The High Court found that the sentencing judge's approach to determining the standard non-parole period was not erroneous. The court held that the finding of mid-range objective gravity was open, as it was a reasonable conclusion based on the evidence presented. The court also determined that the sentence was not manifestly excessive, considering the seriousness of the offence, the need for general deterrence, and the individual circumstances of the appellant. The court emphasised the importance of maintaining a consistent approach to sentencing in similar cases and upheld the original sentence imposed by the sentencing judge.

The final orders of the court were that the application for leave to appeal against the sentence was dismissed. The High Court confirmed that the sentence imposed by the sentencing judge was appropriate and did not need to be altered. This decision reinforces the principles of consistency and proportionality in sentencing for offences involving the supply of large commercial quantities of prohibited drugs.

Orders