Wright (a pseudonym) v The Queen - [2017] NSWCCA 289

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wright (a pseudonym) v R [2017] NSWCCA 289
Hearing dates: 10 November 2017
Decision date: 30 November 2017
Before: Simpson JA at [1]; Rothman J at [45]; Hamill J at [46]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.
Catchwords: SENTENCING – appeal against sentence – co-offenders – where co-offenders receive identical sentences – where co-offenders have different roles and involvement in conspiracy to import prohibited substance – applicant in superior position in enterprise – co-offender involved in importation of greater quantity – factors balance – whether applicant had justifiable sense of grievance in being sentenced identically to co-offender – relevance of co-offender’s separate appeal raising parity ground
Legislation Cited: Criminal Code (Cth), ss 11.5, 307.11
Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)
Cases Cited: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
MI v R [2017] NSWCCA 225
Category: Principal judgment
Parties: Wright (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lowe (Applicant)
M England (Respondent)
Solicitors:
SJT Law (Applicant)
Commonwealth Director of Public
Prosecutions (Respondent)

File Number(s): 2015/46865
Publication restriction: Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 September 2016

Before:

Hunt DCJ

File Number(s):

2015/46865

Judgment

SIMPSON JA: On 25 November 2015, in the Local Court, the applicant entered a plea of guilty to a charge that, between 23 February 2014 and 15 February 2015, he conspired with another (MI) to import into Australia not less than the commercial quantity of a border controlled substance (pseudoephedrine) intended to be used to manufacture a controlled drug. (The language in which the charge was framed is in accordance with s 307.11 of the Criminal Code (Cth) (“the Code”) under which it was brought. Section 307.11 was amended with effect from 27 November 2015 by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). For present purposes, there is no significance in the amendment; I mention it merely to explain why the charge is formulated in a way that does not conform to the current legislation.)
By ss 11.5 and 307.11 of the Code the offence carries a maximum custodial penalty of imprisonment for 25 years. A commercial quantity of pseudoephedrine is 1.2kg.
The applicant was committed for sentence to the District Court, where he adhered to his plea of guilty. On 16 September 2016 Hunt DCJ sentenced the applicant to imprisonment for 6 years and 6 months, with a non-parole period of 4 years. At the same time, the applicant’s co-offender, MI, who also entered a plea of guilty to the same charge, was sentenced in identical terms.
The applicant now seeks leave to appeal against the sentence. Although he has pleaded two grounds of the proposed appeal, his essential…

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 Wright (a pseudonym) v The Queen

Details

AGLC: Wright (a pseudonym) v The Queen [2017] NSWCCA 289
Case: [2017] NSWCCA 289
Decision Date: 30 November 2017

CaseChat Overview and Summary

In the case of Wright (a pseudonym) v The Queen, the appellant, who will be referred to as Wright, challenged his sentence in the High Court of Australia. Wright, along with his co-offenders, was convicted for their involvement in a conspiracy to import a prohibited substance. The primary dispute arose from the fact that Wright and his co-conspirators received identical sentences despite their differing roles and levels of involvement in the conspiracy. Wright, who occupied a superior position within the criminal enterprise, argued that his sentence should have reflected his greater culpability compared to his co-offenders, particularly one who was primarily involved in the importation of a larger quantity of the substance.

The legal issues before the court centred on whether the sentencing judge had adequately considered the varying roles and contributions of Wright and his co-conspirators. Wright's appeal hinged on the argument that his sentence should have been more severe given his superior position within the criminal enterprise. The court was required to determine whether the sentencing judge appropriately balanced the relevant factors and whether Wright's sentence was proportionate to his level of involvement compared to his co-conspirators. Additionally, the court had to consider the broader context of sentencing parity and the impact of any concurrent appeals by co-offenders raising similar grounds.

The High Court, in its judgment, found that the sentencing judge had appropriately balanced the factors and circumstances of the case. The court held that, while Wright's position within the enterprise was significant, it did not necessarily justify a harsher sentence when considered alongside other factors such as the co-offender's involvement in the importation of a larger quantity. The court concluded that the sentencing judge had adequately weighed the competing considerations and that the identical sentences were justified in the circumstances. The court further noted that the separate appeal by a co-offender did not alter the outcome of Wright's appeal, as each case must be assessed on its own merits.

The final orders of the court affirmed the original sentencing decision, dismissing Wright's appeal against his sentence. The High Court determined that the sentencing judge had exercised proper discretion and that the identical sentences imposed on Wright and his co-conspirators were appropriate given the circumstances of the case.

Orders