Wang v The Queen

[2017] NSWCCA 61

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 223
Category:	Principal judgment
Parties:	Xiao Feng Wang (Appellant) Regina (Respondent)
Representation:	Counsel: Ms J Roy (Appellant) Mr D Kell SC wutg Mr M Pulsford (Crown)   Solicitors: 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

1. WALTON J: I agree with R A Hulme J.

2. 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 non-parole period 15 years from 12 July 2005.
2	Supply prohibited drug ("ecstasy") in an amount not less than the trafficable quantity on 12 July 2005.	S 25(1) Drug Misuse and Trafficking Act. Maximum penalty: 15 years imprisonment.	3 years with non-parole period 2 years 3 months from 12 July 2005.
3	Assault officer in the execution of her duty on 12 July 2005.	S 58 Crimes Act 1900 (NSW). Maximum penalty: 5 years imprisonment.	1 year from 12 July 2005.

3. The appellant successfully appealed against the severity of the sentence in respect of Count 1: Xiao Feng Wang v R [2009] NSWCCA 223. Two issues were raised in the appeal: that the primary judge had erred in her approach to the standard non-parole period and that the sentence was manifestly excessive. Hidden J, with the concurrence of Giles JA and McCallum J, found it unnecessary to decide the former but held that the judge had erred in her finding that the offence was in the mid-range of objective seriousness and that the sentence was manifestly excessive.

4. The appellant was re-sentenced to a term of imprisonment for 16 years with a non-parole period of 12 years. As with the original assessment of sentence, the new term entirely subsumed the sentences imposed in respect of Counts 2 and 3.

5. Following the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 the appellant applied under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for the case to be referred to this Court pursuant to s 79(1)(b) to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW). Hoeben CJ at CL refused the application: Application by Xiao Feng Wang pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825.

6. After the Court of Appeal delivered judgment on 31 July 2015 in a case involving similar issues, Buttrose v Attorney General of New South Wales [2015] NSWCA 221, the appellant's present lawyers made a further application for referral to this Court which was granted by Bellew J: Application by Xiao Feng Wang pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1670.

7. Although the decision of Bellew J was made on 25 November 2016, it was not until 23 February 2017 that a Notice of Appeal was filed. The Registrar was, however, on notice of the decision and previously secured the earliest possible hearing date for the matter given the appellant's non-parole period is due to expire on 11 July 2017.

Ground of appeal

8. The sole ground of appeal is:

The appellant's sentence on count 1 was imposed contrary to the principles set out in Muldrock v The Queen (2011) 244 CLR 120.

Submissions for the parties

9. It is common ground and uncontroversial that this Court must deal with the matter as if it was an appeal against the sentence imposed by it in 2009 rather than the sentence imposed in the District Court in 2006: Louizos v R [2014] NSWCCA 242 at [6] (Leeming JA) and [109] (R A Hulme J).

10. The appellant was sentenced, and re-sentenced, in the period in which R v Way [2004] NSWCCA 131; 60 NSWLR 168 was understood to set out the principles for sentencing in respect of offences for which a standard non-parole period applied. The High Court in Muldrock v The Queen held R v Way to have been wrongly decided in a manner that has been stated so often in judgments of this Court that it does not bear repeating.

11. The appellant contends that "Muldrock error" is evident in the approach of this Court to resentencing in three respects:

1   Hidden J expressly applied R v Way in considering whether there should be a "departure" from the standard non-parole period whereas it was held in Muldrock v The Queen that the standard non-parole period is not a starting point in the assessment of sentence. (AWS [38])

2   The "neatness" of the arithmetic is indicative of error in that the Court assessed the objective seriousness of the offence as "somewhat below the mid-range", found certain mitigating subjective features, and imposed a non-parole period of 12 years as compared to the standard non-parole period of 15 years. (AWS [39]-[41])

3   In assessing the new sentence to be imposed, Hidden J drew comparisons with other cases which had been determined (explicitly or by inference) in accordance with R v Way. (AWS [43]-[47])

12. The Crown does not accept that the first and third of these contentions are made good. However, it accepts that it would be open to the Court to find that the sentence imposed by this Court was contrary to the principles in Muldrock v The Queen for three reasons:

1   It should be presumed, unless the contrary appears, that a sentence that was imposed following R v Way and before Muldrock v The Queen was assessed by application of the principles in R v Way: Davis v R [2015] NSWCCA 90 at [33] (Simpson J). (CWS [34]-[35])

2   The language of Hidden J's judgment (particularly at [19]) does not suggest he was, in any way, departing from the approach stipulated in R v Way. (CWS [36])

3   "The 'neatness' of the arithmetic as to the appellant's sentence may, in the present case, be indicative of Muldrock error." (CWS [37])

Determination

13. I am satisfied that error has been established on the basis that the sentence was impermissibly affected by application of the principles in R v Way and contrary to Muldrock v The Queen for the following reasons.

14. First, although Hidden J found it unnecessary to decide whether the primary judge erred in her approach to the standard non-parole period, immediately before stating that he said:

"[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. …" (Emphasis added)

15. The emphasised sentence clearly indicates that, in accordance with R v Way, his Honour regarded the approach to sentence as involving the standard non-parole period having determinative significance and being a two-staged one, looking for reasons to depart from it: to the contrary, see Muldrock v The Queen at 131-132; [26], [28].

16. Secondly, Hidden J referred to sentencing statistics maintained by the Judicial Commission of New South Wales in respect of the offence of supplying a large commercial quantity of a prohibited drug and to a number of previous decisions of this Court in respect of sentencing for such an offence. Both the statistics and the cases derived from the post-R v Way and pre-Muldrock v The Queen era. As Simpson J (as she then was) observed in R v Davis, it may be presumed that most, if not all of them, were influenced by the erroneous R v Way principles.

Re-sentencing

17. Error having been established, in accordance with Kentwell v The Queen (at [42]-[43]), it is necessary for this Court to exercise the sentencing discretion afresh in order to determine if a lesser sentence is warranted and should have been passed: s 6(3) Criminal Appeal Act.

18. In accordance with Muldrock v The Queen (at [26]-[27]) it is necessary to have regard to all factors relevant to sentence and in doing so to bear in mind the legislative guideposts of the maximum penalty of imprisonment for life and the standard non-parole period of 15 years.

Facts

19. The appellant was found guilty after trial in respect of the drug offences but had earlier pleaded guilty to assaulting the police officer. The facts of the offences were set out in the judgment of Hidden J (at [5]) 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."

The appellant's personal circumstances

20. The written submissions for the appellant accepted that the following matters derived from the remarks on sentence of the primary judgment and the judgment of Hidden J may be relied upon in re-sentencing.

21. The appellant was born in China and was aged 37 at the time of the offences and is now aged 49. His childhood was disrupted by the death of his mother when he was aged 14. In his early twenties he was briefly married but a psychological report recorded that there was a degree of instability in his life in this period. He migrated to Australia in his late twenties.

22. The appellant attained a tertiary qualification in physical education and worked consistently as a policeman and fitness trainer in China and later as a physical education instructor in Australia.

23. He was addicted to alcohol by the time he migrated to Australia, drinking to excess daily. A psychologist diagnosed a substance abuse disorder. This was accepted to have affected his decision making but not to have mitigated his offending because, according to the primary judge, he "chose to let the problem overtake him". At the time of his first appeal he had sought to address his addiction in custody and had undertaken a course in English in which he was making progress.

24. The appellant had a criminal record comprising driving offences as well as offences of dishonesty and concerning firearms. He served terms of imprisonment for some of these matters after he was taken into custody in respect of the index offences.

25. An affidavit by the appellant's solicitor read at the first appeal hearing annexed copies of a number of certificates attesting to the appellant's continued efforts to further his education whilst in custody. They included completion of an Alcohol and Other Drug Relapse Prevention course and numerous literacy and computer courses.

26. A number of affidavits were read at the hearing today. The appellant's affidavit included that he understood he would be deported upon his release on parole and that he was eager to return to his family in China. He provided an account of his progression through classification down to minimum security, ultimately with a transfer to a remote country gaol where he has permission to work outside of the gaol, in the community. He used to receive visits from a friend up until 2012 but has had no visitors since then. He maintains telephone contact with his family.

27. The material indicates that the appellant has been of good behaviour during his long period of incarceration; he has played a role as a peer support inmate; he has given effort to improving his English and has enrolled in a variety of self-improvement and vocational courses. Further, he has accepted employment when available and he has family support to assist him after his release.

28. An affidavit by the appellant's current solicitor sets out in detail the process since Muldrock v The Queen was decided of seeking a review of the appellant's sentence and those of many other inmates who were sentenced under the R v Way-regime. I interpolate the personal comment that although the task has been difficult and lengthy, the dedicated efforts of Mr Eccleshall and those of his colleagues at Legal Aid NSW doing similar work should be commended.

29. Documentary material annexed to Mr Eccleshall's affidavit confirms what the appellant said in his affidavit. It appears that his efforts in undertaking work, courses and programs throughout the period of his imprisonment have been exemplary and he is a well-regarded inmate.

30. Albeit that there is no evidence of remorse, the appellant has established on the balance of probabilities that he has good prospects of rehabilitation and is unlikely to re-offend.

31. The appellant relied upon delay as a further mitigating factor. The principles in relation to delay were recently summarised by Price J (Button and Fagan JJ agreeing) in Elchiekh v R [2016] NSWCCA 225 at [56]. I infer that the appellant has been left in a state of some uncertainty about the outcome of his various applications and appeals but there is nothing tangible in the evidence about him experiencing any adverse consequences as a result. The only real way in which delay is relevant in a significant sense is that the appellant has demonstrated progress towards rehabilitation during the lengthy period since he was first sentenced. However, that is a factor that must be taken into account in his favour in any event.

Assessment of seriousness of offence

32. The assessment of the objective seriousness of the offence is a contentious issue. The primary judge found that it was in the mid-range whilst in this Court in 2009 it was assessed at "somewhat below" that level.

33. For the appellant it was submitted that "if this Court considered it appropriate to make a finding … it would find that it falls towards the lower end [of the range] for offences of this kind". (AWS [51]) The Crown contested that submission, arguing that a fresh assessment would result in the same conclusion drawn by Hidden J.

34. This task is rendered difficult by the paucity of evidence as to the appellant's role and intentions in relation to the large quantity of drugs he acquired on the night in question. However, it can be said at least that he was in possession for the purpose of supply of almost three times the large commercial quantity threshold for the drug and that he was in that position as a result of some degree of planning and premeditation. Clearly, it is not an offence that is at the lower end of the range but I am not satisfied that it is in the mid-range either.

Statistics and other cases

35. Accompanying the appellant's submissions were various printouts of sentencing statistics and an extensive table of other cases.

36. The statistics are of little use because of the 62 cases in the Judicial Commission's database for this particular offence where it concerns the drug known as ecstasy, only 4 involved a plea of not guilty. Although the Judicial Commission has recently commenced to provide increasingly informative information as to the cases that comprise the database, the appellant provided no information as to the extent to which the sentences passed in respect of the vast majority of offenders were presumably reduced on account of pleas of guilty and, in some cases perhaps, assistance to authorities.

37. The table provided by the appellant lists cases which are recent (2011-2017) and involve an offence of supplying a large commercial quantity of any type of prohibited drug. I have found it to be of some, albeit very broad, assistance in reminding myself of the range of penalties imposed for this kind of offending.

Totality

38. The Crown noted that the sentence for the primary offence entirely subsumed those imposed for the offences in Counts 2 and 3, notwithstanding Sweeney DCJ finding that they involved additional criminality. It submitted that as a matter of principle there should be some accumulation of the sentence for the primary offence upon them, as well as upon the sentences imposed for various earlier offences that were dealt with summarily following the appellant's arrest ("the prior offences").

38. The prior offences were:

Goods in custody (6 months imprisonment)

Possess unauthorised firearm (200 days)

Possess ammunition (200 days)

Possess unregistered firearm (200 days)

Not keep firearm safely – pistol (200 days)

Use copy of false instrument with intent (6 months)

Have false instrument with intent to use (x 2) (6 months)

40. Each of these sentences was specified to commence on either 13 July 2005 or 13 September 2005.

41. Having regard to the principle of totality (see Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]) it would be appropriate to partially accumulate the sentence for the primary offence by 6 months, thereby ordering its commencement on 12 January 2006.

Special circumstances

42. The appellant submitted that there should be a finding of special circumstances. However, for the reasons given recently in Potts v R [2017] NSWCCA 10, there is no utility in making such a finding.

Conclusion

43. After assimilating all of the foregoing and bearing in mind the statutory guideposts, I have concluded that a lesser sentence is warranted. There should be a sentence of imprisonment for 14 years with a non-parole period of 10 years 6 months accumulated by 6 months upon the various other sentences that had been imposed upon the appellant.

Orders

44. I propose the following orders:

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.

45. BEECH-JONES J: I agree with R A Hulme J and the orders his Honour proposes.

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Decision last updated: 29 March 2017