Wang v R

[2009] NSWCCA 223

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 20 years, comprising a non-parole period of 15 years and a balance of term of 5 years, commencing on 12 July 2005;

· On the second charge in the indictment, supplying not less than the trafficable quantity of ecstasy, imprisonment for 3 years, comprising a non-parole period of 2 years and 3 months and a balance of term of 9 months, also commencing on 12 July 2005;

· On the charge of assaulting a police officer, a fixed term of imprisonment for 1 year, again commencing on 12 July 2005.

Accordingly, the sentences for supplying a trafficable quantity of ecstasy and for assaulting a police officer were wholly subsumed within the non-parole period fixed for the major offence. It is the sentence for that offence which is the subject of this application for leave to appeal.

Facts

5 The two drug charges relied on the deeming provision in s 29 of the Drug Misuse and Trafficking Act. The sentencing judge summarised the facts in her remarks as follows:

The evidence which the jury must have accepted in order to find Mr Wang guilty of the two offences on the indictment at the trial was that on 12 July 2005 at around 7pm, at Strathfield Park, Mr Wang was observed to be standing near a telephone box with some other men. A car pulled up to that telephone box. Mr Wang got into the car. The car drove about 100 metres up the road, and stopped at a bus stop. Mr Wang got out of the car holding a bag which was later found to contain almost 5000 Ecstasy pills. They were later analysed and found to be such. A police officer, the police officer in relation to the assault charge, Detective Tse, was across the road from the bus stop. She announced her office and went towards Mr Wang. There was a struggle over the bag which he held. Eventually Mr Wang was able to extricate himself from the bag. He pushed the bag into the chest of Detective Tse which caused her to fall backwards and land on the ground. He then ran away. The assault on Constable Tse, which I take to be the pushing her in the chest with the bag, while it caused her to fall to the ground, is in my view, at the lower end of assaults. …
As to the second offence on the indictment, Mr Wang, having left the scene of Strathfield Park, was later detected by police to be at a unit at Belfield where he said he was living, although surveillance suggested that he may also have been spending part of his time at other premises. He left those Belfield premises with a bag. He got into a car and was driven a short distance whereupon he was arrested after the vehicle was stopped. In the bag there were some personal belongings including some clothing and a further approximately 80 Ecstasy tablets which had the same appearance and the same Mitsubishi logo and were analysed later to have about the same level of purity as the 5000 or so tablets which were contained in the bag at Strathfield Park. The quantity of those pills were weighed at 50.93 grams and the trafficable quantity is .75 of a gram. In terms of the first charge on the indictment, the large commercial quantity charge, the large commercial quantity specified for the drug [MDMA] is 0.5 of a kilogram and those drugs were weighed at 1464.46 grams.

Subjective Case

6 The applicant was 37 years old at the time of the offences, and is now 41. He is a native of China and came to this country in about 1995, when he was in his later twenties. He has a criminal record commencing in 1998, which comprises driving offences, offences of dishonesty and firearm offences, including the unauthorised possession of a firearm and ammunition. They were all summary offences, there are no entries for drug offences and, generally, there is nothing approaching the seriousness of the offence with which this Court is concerned.

7 There is no need to examine his criminal history in any detail. It is sufficient to say that for some of the offences he was sentenced to short terms of imprisonment. In 2001 he went back to China, returning to this country in 2005. Some of those sentences related to offences committed before his departure, but all of them were imposed after he was taken into custody for the present matters. That being so, this period of custody has been his first and about 8 months of it is referable to those short sentences. Nevertheless, her Honour was content to date the sentences which she imposed from the day he was taken into custody.

8 A psychological report before her Honour recorded that he had had a stable upbringing in China, although his family life was disrupted by his mother’s death from cancer when he was 14 years old. In China he completed his secondary education, and in 1991 he attained a tertiary qualification in physical education. The psychologist recorded “a degree of instability in his life“ in his early twenties. He was married but the relationship lasted only 2 years, and he had since had two relatively short term de facto relationships.

9 He began drinking in his late teens, and by the time he came to this country he was addicted to alcohol and was drinking to excess daily. This, no doubt, explains several entries in his criminal record for drink driving offences. Since being in custody, he had sought to address his addiction and had undertaken a course in English in which he was making good progress. Upon psychiatric testing and actuarial analyses, the psychologist assessed him as having a low to moderate risk of recidivism and a reasonably good chance of rehabilitation. It was noted, however, that the prospects of rehabilitation would be enhanced if he could resolve his alcohol abuse and develop a more stable lifestyle, and counselling to that end was recommended.

Sentencing judge’s reasons

10 Her Honour observed that the standard non-parole period of 15 years “loomed large” in the proceedings, and a significant part of her reasons was directed to whether that non-parole period was appropriate. Having concluded that it was, it is apparent that her Honour arrived at the sentence of 20 years by the application of the statutory ratio between sentence and non-parole period.

11 Her Honour found that the offence fell in the mid range of objective gravity of offences of its kind. The applicant gave no evidence in the sentence proceedings and, confined to the evidence in the trial, her Honour found it very difficult “to distil any information” about his role in the offence. She found no evidence that he was “a mere courier” or that he was acting with others, apart from the evidence of the two men present with him when he got into the car and collected the drugs. She recorded that one of those men had been spoken to by police and allowed to go.

12 Her Honour also found no evidence that the applicant was merely delivering the drugs to another person. She saw the offence the subject of the second count as an attempt by the applicant to “retrieve the balance” of the ecstasy tablets from the premises at Belfield “after his interaction with the police at Strathfield Park …” She found this to suggest that the applicant’s possession of the pills at the park was “not an isolated event”, and that “his role in dealing with the pills involved some independence and substance …”

13 Her Honour also saw the quantity of the tablets, being just under three times the large commercial quantity, as indicative of the applicant’s role. She said:

… this was not a situation of someone being a street dealer with a small quantity of pills in his pocket ready to provide to persons at dance parties for example. The large quantity of pills suggest that he was at a higher level, rather than at a low level, in a notional hierarchy of persons dealing with those drugs.

14 Her Honour noted the applicant’s alcohol addiction but did not find it to be a mitigating factor. She found no “direct causal connection” between that addiction and the offence. By that, she explained, she meant that it did not appear that the offence was committed because of a need to satisfy that addiction. She accepted that his judgment had been affected by alcohol, but she did not see this as reducing the objective seriousness of the offence below the mid range.

15 Her Honour reviewed the subjective material, including the psychologist’s assessment of the applicant’s risk of recidivism and prospects of rehabilitation. She said of that assessment:

Those prospects of rehabilitation and low to moderate prospects of recidivism are, in my view, not striking such that they would warrant a departure downward from the standard non-parole period.


She declined to find special circumstances. She noted the applicant’s need for counselling for his alcohol problem and the fact that this was his first time in custody, but did not think that those circumstances were such that he needed “a longer period of supervision on parole, so as to reduce the non-parole period”.

The application

16 Mr Boulten SC, for the applicant, relied on written submissions prepared earlier by Mr Pickin of counsel, together with his own supplementary written submissions, developed succinctly in oral argument. Similarly, the Crown prosecutor before us relied upon written submissions previously prepared by another prosecutor and supplemented them with his own. The application was presented on two distinct but related bases: that her Honour erred in her approach to the standard non-parole period and that the sentence is manifestly excessive.

17 Put shortly, Mr Boulten argued that it was not open to her Honour to have found that the offence fell within the mid range of objective seriousness. In any event, it was argued, a departure from the standard non-parole period was warranted by the applicant’s subjective case and there should have been a finding of special circumstances. Generally, Mr Boulten submitted that her Honour allowed the standard non-parole period to dominate the exercise of her sentencing discretion in a manner inconsistent with the approach to the relevant legislation expounded in R v Way [2004] NSWCCA 131, 60 NSWLR 168.

18 That seminal decision about the approach to the provisions relating to standard non-parole periods in Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act places those provisions within a framework which recognises and retains the broad discretion which has always attended the sentencing exercise. Importantly for present purposes, the court said at [131]:

What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender’s guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act.

19 With respect to her Honour, there is some force in Mr Boulten’s argument. In particular, her observation that the applicant’s prospects of rehabilitation and low to moderate prospects of recidivism were not “striking”, so as to warrant a departure from the standard non-parole period, concerns me. Whether there should be such a departure depends upon an assessment of the objective and subjective factors peculiar to each case, and there is no requirement that an offender’s subjective case, or any part of it, should rise above some notional threshold before the standard non-parole period can be ameliorated. However, I find it unnecessary to express a concluded view about this aspect of Mr Boulten’s argument because I am satisfied that it was not open to her Honour to assess the objective gravity of the offence as she did.

20 In so saying, I am mindful of the respect which this Court affords to a sentencing judge’s assessment of that matter: see R v Deng [2007] NSWCCA 216, 176 A Crim R 1, per James J at [62] ff and the cases there referred to. Nevertheless, her Honour’s function was to determine where the applicant’s offence fell within the range of objective gravity of offences of its kind, that is, the supply of the large commercial quantity of ecstasy. Undoubtedly, that assessment was bedevilled by the paucity of evidence of the applicant’s involvement in the offence.

21 Mr Boulten challenged her Honour’s finding that there was no evidence that the applicant was acting with others. However, for this purpose he relied upon evidence given at the trial which was not before us and which we cannot evaluate. It is true, as Mr Boulten pointed out, that the offence is founded upon the applicant’s possession for a brief time of drugs taken from a car which had been used to convey them to the Strathfield area. Mr Boulten acknowledged that it was open to her Honour to be satisfied that the applicant was more than a mere courier, particularly in the light of his behaviour in returning to the Belfield premises and retrieving the remaining tablets. Nevertheless, there is force in Mr Boulten’s submission that her Honour was left to assess the seriousness of the offence “in somewhat of a factual vacuum”.

22 That said, the principal focus of Mr Boulten’s argument was her Honour’s reference to the quantity of ecstasy involved and her contrast of the applicant’s criminality with that of a street dealer. As I have said, her Honour found that quantity to suggest that he was at a higher level in a “notional hierarchy” of people dealing with drugs of that kind. From those observations it appears that her Honour was assessing the place of the applicant’s criminality in the range of drug dealing generally, rather than confining it to the supply of the large commercial quantity. As Mr Boulten rightly pointed out, any offender in possession of drugs in the large commercial quantity for the purpose of supply must occupy a position in the upper echelon of drug dealing generally, and the criminality of such an offender will inevitably be greater than the type of street dealer to whom her Honour referred.

23 While acknowledging that the assessment of the objective gravity of an offence is a matter about which reasonable minds might differ and that each case must turn on its own facts, it is instructive to examine how this Court made that assessment in a number of cases involving the large commercial quantity of ecstasy to which Mr Boulten referred us. Most of these were Crown appeals.

24 In R v Knight& Biuvanua [2007] NSWCCA 283, 176 A Crim R 338, the charge against the respondent, Knight was founded upon her possession of almost 1 kg of ecstasy but the offence was committed against the background of her having been involved in the business of supply of that drug from her home over a period of time. She had controlled a syndicate involving a number of male drug runners, who sold the ecstasy on her behalf and returned the profits to her. Not surprisingly, Howie J in the leading judgment evaluated her criminality as “well above the midrange in seriousness”: [50].

25 Edwards v R [2008] NSWCCA 281 was an unsuccessful appeal against sentence by an offender who had been involved in a business of supplying ecstasy over a period of more than 3 months. The amount supplied was 1.68 kilograms. McClellan CJ at CL held that it would have been open to the sentencing judge to have found the offence to be above the mid-range: [8].

26 In R v Stankovic [2006] NSWCCA 229, the respondent had been involved as a labourer in the manufacture of 44 kilograms of ecstasy. Grove J assessed the objective seriousness of this offence as “at least in the middle of the range”: [19].

27 In R v Stricke [2007] NSWCCA 179, the respondent had committed two offences involving the large commercial quantity. The first was the sale of 5,000 ecstasy tablets, weighing 1.2 kilograms, to an undercover police officer. The second was the supply of a further 18,000 ecstasy tablets to the same undercover officer, that quantity being part of an agreement to supply some 25,000 tablets. Hislop J, delivering the leading judgment, placed the second offence at at least the mid range, but saw the first offence as “a little below that level”: [21].

28 In R v Gao & Lim [2007] NSWCCA 343, the respondent, Gao sold 2,000 ecstasy tablets, weighing a little over 568 grams, to an undercover officer, while Lim agreed to supply 5,000 tablets, weighing between 1 kilogram and 2.5 kilograms, to the officer. Latham J characterised Gao’s offence as “slightly below the mid-range of objective gravity”: [25], and Lim’s as “below the mid-range”: [30].

29 R v Thompson [2005] NSWCCA 340, 156 A Crim R 467 was a successful appeal by an offender who had pleaded guilty. Mason P assessed his role as that of a “substantial street dealer operating as a principal involved in ‘wholesale’ and ‘retail’ supply of ecstasy, but as a one-man show”: [42]. Earlier in the judgment, his Honour observed that, if the matter had gone to trial, the offender would have been “a candidate for imposition of the standard non-parole period as the offence may reasonably be characterised as one which lies in the middle of the range of objective seriousness for an offence of this type”: [23].

30 It will be seen that, unlike the present case, the level of involvement of the offenders in these cases was able to be described with some particularity. Moreover, in most of them the offenders’ criminality was demonstrably more serious than that which could be established against the present applicant. This lends support to the submission, which I accept, that her Honour fell into error in her assessment of the objective gravity of his offence. In my view, it falls somewhat below the mid range. That being so, it is unnecessary to address separately Mr Boulten’s complaints about the weight her Honour gave to the applicant’s subjective case and her declining to find special circumstances.

31 Accordingly, the discretion of this Court to re-sentence the applicant is enlivened. That task is assisted by the stance taken by the Crown in relation to the remaining ground of appeal, that is, that the sentence is manifestly excessive. The Crown prosecutor who drew the original written submissions acknowledged that, in the light of the decision in Thompson (supra), “there may be scope for some intervention by this Court”. Similarly, his colleague who appeared before us acknowledged in oral argument the merit of the ground of manifest excess, saying that “considering all of the material that was before her Honour and consistent with her Honour’s findings, there may be some scope” for intervention.

32 That the Crown’s concession was appropriate is apparent not only from the decisions of this Court to which Mr Boulten referred us, but also from the Judicial Commission’s statistics for sentences for this offence since the introduction of the standard non-parole period. From the figures for all offenders, 36 cases, it emerges that her Honour’s sentence of 20 years imprisonment is the highest recorded. In addition to the cases which I have mentioned, Mr Boulten took us to the Crown appeal in R v Nikolic [2007] NSWCCA 232, the co-offender of Stankovic, and the unsuccessful appeal by the offender in Sukkar v R [2007] NSWCCA 298.

33 All these cases were concerned with sentence after pleas of guilty. In some of them the offenders had also been sentenced for other related offences, and considerations of totality arose. The Crown appeals in Stankovic, Nikolic, Stricke, and Gao & Lim were successful and, of course, in re-sentencing the Court exercised the restraint appropriate in cases of that kind. Knight & Biuvanua can be left out of account, because it involved discretionary constraints in addition to those usually attendant upon a Crown appeal. Of the 3 cases in which offenders appealed against sentence, this Court intervened in Thompson but upheld the sentences at first instance in Sukkar and Edwards.

34 In the light of the Crown’s concession, it is unnecessary to go to the detail of the facts of these cases and the subjective circumstances of the offenders. It is sufficient to say that all of them, including Nikolic and Sukkar, disclose a level of criminality greater than that proved against the applicant.

35 Putting aside Edwards, to which I shall return, sentences in the cases ranged, in round figures, from 10 to 13 years and non-parole periods, again in round figures, from 6 to 9 years. The head sentences were arrived at after discounts for pleas of guilty and, in Stankovic and Sukkar, some assistance to the authorities. Starting points of sentence before the application of those discounts ranged from roughly 11 years to about 19 ½ years. (Sukkar appears to be within that range even though the sentencing judge had not quantified a discount for the offender’s plea and his willingness to assist the authorities: see the leading judgment of Hulme J at [14].)

36 Edwards stands out somewhat from the range disclosed by the other cases. That offender had been dealt with for other drug offences as well as the supply of the large commercial quantity of ecstasy, but the sentence for that major offence, which this Court upheld, was imprisonment for 17 years with a non-parole period of 10 years. He had been allowed a 25% discount for his pleas of guilty, so that the starting point for that offence must have been in the order of 23 years. However, in dismissing the appeal the Court was influenced by the fact that for the other offences, themselves serious, the offender had received fully concurrent sentences, so that the 17 year sentence was seen as an appropriate reflection of the whole of his criminality: see the leading judgment of McClellan CJ at CL at [12], [24] – [26]. In any event, as I have said, this was another case in which the established objective gravity of the major offence was greater than that of the present applicant.

37 Accordingly, I am satisfied that this Court should intervene. In the event of re-sentence, we received an affidavit by the applicant’s solicitor annexing copies of a number of certificates which attest to his continued efforts to further his education while in custody. Having regard to all the circumstances, including the applicant’s subjective case, I consider that the appropriate sentence is imprisonment for 16 years. I would not find special circumstances. The application of the statutory ratio would produce a non-parole period of 12 years. In my view, a minimum term of that length is necessary to reflect the applicant’s criminality, while affording him the opportunity of a period on parole adequate to foster his rehabilitation.

38 In respect of the sentence passed on the first count in the indictment, I would grant leave to appeal, allow the appeal and quash the sentence passed in the District Court. In lieu, I would sentence the applicant on that count to 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.

39 McCallum J: I agree with Hidden J.

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