Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Wang v R [2017] NSWCCA 61 Hearing dates: 29 March 2017 Date of orders: 29 March 2017 Decision date: 29 March 2017 Before: Walton J at [1];
R A Hulme J at [2];
Beech-Jones J at [45]Decision: 1. Allow the appeal against sentence.
2. Quash the sentence imposed by the Court of Criminal Appeal on 10 September 2009 and in lieu, sentence the appellant for the offence of supplying a prohibited drug in not less than the large commercial quantity to imprisonment comprising a non-parole period of 10 years 6 months with a balance of the term of the sentence of 3 years 6 months.
The sentence will date from 12 January 2006. The non-parole period expired on 11 July 2016 and the total term will expire on 11 January 2020. The appellant is now eligible for release on parole.Catchwords: CRIMINAL LAW – appeal against severity of sentence – supply of a large commercial quantity of a prohibited drug - “Muldrock error” – error in assessment of a sentence where a standard non-parole period applies – ground of appeal allowed – assessment of objective seriousness of offence – relevance of delay - whether lesser sentence warranted - applicant re-sentenced Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Part 7
Criminal Appeal Act 1912 (NSW) ss 6(3), 79(1)Cases Cited: Application by Xiao Feng Wang pursuant to s 79 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825
Application by Xiao Feng Wang pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1670
Buttrose v Attorney General of New South Wales [2015] NSWCA 221
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Davis v R [2015] NSWCCA 90
Elchiekh v R [2016] NSWCCA 225
Kentwell v the Queen [2014] HCA 37; 252 CLR 601
Louizos v R [2014] NSWCCA 242
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Potts v R [2017] NSWCCA 10
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Xiao Feng Wang v R [2009] NSWCCA 223Category: Principal judgment Parties: Xiao Feng Wang (Appellant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Ms J Roy (Appellant)
Mr D Kell SC wutg Mr M Pulsford (Crown)
Legal Aid NSW
Solicitor for Public Prosecutions
File Number(s): 2006/5195 Decision under appeal
- Court or tribunal:
- District Court
- Date of Decision:
- 3 November 2006
- Before:
- Sweeney DCJ
- File Number(s):
- 2006/5195
Judgment
-
WALTON J: I agree with R A Hulme J.
-
R A HULME J: Xiao Feng Wang ("the appellant") was sentenced by Sweeney DCJ in the District Court on 3 November 2006 in respect of the following:
Count
Offence
Statutory provisions
Sentence
1
Supply prohibited drug ("ecstasy") in an amount not less than the large commercial quantity on 12 July 2005.
(“The primary offence”)
S 25(2) Drug Misuse and Trafficking Act 1985 (NSW). Maximum penalty: life imprisonment.
Standard non-parole: period 15 years.
20 years with…
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- AGLC
- Wang v The Queen [2017] NSWCCA 61
- Case
- [2017] NSWCCA 61
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the trial judge had erred in the assessment of the sentence, specifically in applying the "Muldrock error," which referred to the misapplication of the standard non-parole period for such offences. The court also needed to consider the relevance of any delay in the proceedings and whether a lesser sentence was warranted given the objective seriousness of the offence. Furthermore, the court was required to assess whether the trial judge had appropriately exercised their discretion in determining the severity of the sentence.
The High Court found that the trial judge had indeed made an error in the assessment of the sentence, which warranted the allowance of the appeal. The court held that the trial judge had failed to properly consider the standard non-parole period applicable to the offence, which was a critical factor in determining the severity of the sentence. The court also found that the relevance of any delay in the proceedings did not impact the assessment of the objective seriousness of the offence. The court concluded that a lesser sentence was warranted given the misapplication of the standard non-parole period and the objective seriousness of the offence. Consequently, the appellant was re-sentenced by the court.
The final orders of the court included the allowance of the appeal, the re-sentencing of the appellant, and the quashing of the original sentence. The court provided clear guidance on the correct application of the standard non-parole period and the importance of properly assessing the objective seriousness of the offence in determining the severity of a sentence.
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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