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Wang v The Queen

Wang v The Queen

Case [2017] NSWCCA 61 29 March 2017

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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

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…

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 The Queen

Details

AGLC: Wang v The Queen [2017] NSWCCA 61
Case: [2017] NSWCCA 61
Decision Date: 29 March 2017

CaseChat Overview and Summary

The case of Wang v The Queen involved the appellant who was convicted of supplying a large commercial quantity of a prohibited drug. The appellant appealed against the severity of the sentence imposed, arguing that the trial judge had made an error in the assessment of the sentence by applying a "Muldrock error" and failing to properly consider the standard non-parole period. The High Court of Australia was asked to determine the appropriate legal issues regarding the assessment of the objective seriousness of the offence and the relevance of any delay in the proceedings.

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