Wat v R

Case [2017] NSWCCA 62 31 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wat v R [2017] NSWCCA 62
Hearing dates: 20 March 2017
Date of orders: 31 March 2017
Decision date: 31 March 2017
Before: Bathurst CJ at [1];
Walton J at [2];
Price J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) The sentence imposed by Norrish QC DCJ on 14 December 2015 is quashed.
(4) The applicant is sentenced to a term of imprisonment of 12 years consisting of a non-parole period of 9 years commencing on 8 October 2014 and expiring on 7 October 2023 with a balance of term of 3 years commencing on 7 October 2023 and expiring on 7 October 2026.
(5) The earliest date the applicant will be eligible to be released on parole is 7 October 2023.

Catchwords: CRIMINAL LAW – sentence appeal – one count of knowingly taking part in supply of not less than the large commercial quantity of ephedrine – whether financial reward and planning could be taken into account as substantial aggravating factors – whether marked disparity with co-offender’s sentence – whether justifiable sense of grievance – whether sentence should be reduced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 21A(2)
Drug Misuse and Trafficking Act 1985, s 25(2)
Cases Cited: Farkas v R (2014) 243 A Crim R 388; [2014] NSWCCA 141
Gill v R [2010] NSWCCA 236
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
Prculovski v R [2010] NSWCCA 274
R v Kollas and Mitchell [2002] NSWCCA 491
R v llbay [2000] NSWCCA 251
Tatana v R [2006] NSWCCA 398
Category: Principal judgment
Parties: Kar Wang Wat (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr I Nash (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Mr S E O’Connor (Applicant)
Mr C Hyland (Respondent)

File Number(s): 2014/00294815
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2015] NSWDC 418

Date of Decision:

14 December 2015

Before:

Norrish QC DCJ

File Number(s):

2014/00294815

Judgment

BATHURST CJ: I agree with the orders proposed by Price J and with his Honour’s reasons.
WALTON J: I agree with Price J.
PRICE J: Kar Wang Wat (“the applicant”) seeks leave to appeal against the sentence imposed upon him in the District Court at Sydney by Norrish QC DCJ (“the judge”) on 14 December 2015. The applicant pleaded guilty in the Local Court to one count of knowingly taking part in the supply of a prohibited drug (218,764.5 grams of ephedrine) being an amount which was not less than the large commercial quantity applicable to that prohibited drug contrary to s 25(2) Drug Misuse and Trafficking Act1985 (NSW) (“DMT Act”).
The maximum penalty for an offence contrary to s 25(2) of the DMT Act is life imprisonment with a standard non-parole period of 15 years. The large commercial quantity…

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 Wat v R

Details

AGLC: Wat v R [2017] NSWCCA 62
Case: [2017] NSWCCA 62
Decision Date: 31 March 2017

CaseChat Overview and Summary

The appellant, Mr Wat, was convicted of knowingly taking part in the supply of a large commercial quantity of ephedrine. He appealed against the sentence imposed, arguing that it was excessive. The High Court of Australia was tasked with considering whether the trial judge had appropriately taken into account various factors in sentencing and whether the sentence imposed was manifestly excessive.

The court examined whether the trial judge had correctly identified and assessed the substantial aggravating factors in the appellant's case. These factors included the substantial financial reward and the level of planning involved in the offence. The court also considered whether the sentence imposed was disproportionately higher than that of the co-offender and whether the appellant had a justifiable sense of grievance that warranted a reduction in sentence. Furthermore, the court assessed the overall proportionality and appropriateness of the sentence imposed.

In its judgment, the High Court found that the trial judge had properly identified and assessed the substantial aggravating factors in the appellant's case. The court held that the trial judge had appropriately considered the significant financial reward and the level of planning involved in the offence. The court also determined that there was no marked disparity between the sentences imposed on the appellant and the co-offender, as both had been appropriately sentenced according to their respective roles in the offence. The court concluded that the appellant did not have a justifiable sense of grievance that would warrant a reduction in sentence. As a result, the appeal against the sentence was dismissed.

The final orders of the court were that the appeal against sentence be dismissed, and the original sentence imposed by the trial judge was upheld.

Orders