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Wu v The Queen

Wu v The Queen

Case [2010] NSWCCA 286 7 December 2010

Sentencing

Appeal

Totality Principle

Special Circumstances

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New South Wales
Court of Criminal Appeal

CITATION: WU v R [2010] NSWCCA 286

HEARING DATE(S): 11 August 2010

JUDGMENT DATE:
7 December 2010

JUDGMENT OF: McClellan CJatCL at 1; Hulme J at 2; Davies J at 51

DECISION: (i) Grant leave to appeal;
(ii) Allow the appeal;
(iii) Confirm the sentence imposed by Williams DCJ on the charge of, on 21 December 2007, supplying a commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine;
(iv) Quash the sentences imposed on counts (ii) and (iii);
(v) In respect of the offence of, on 21 December 2007, supplying a large commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine, sentence the Applicant to imprisonment for a non-parole period of 5 years commencing on 21 December 2008 and a further term of 4 years commencing on 21 December 2013;
(vi) In respect of the offence of, between 13 November and 21 December 2007, supplying a large commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine, sentence the Applicant to imprisonment for a non-parole period of 5 years commencing on 21 December 2008 and a further term of 4 years commencing on 21 December 2013;
(vii) Record as the date upon which it appears to the Court that the Applicant shall become eligible for parole, 21 December 2013.

PARTIES: Tianhao Roy WU
Regina

FILE NUMBER(S): CCA 2009/5535

COUNSEL: Applicant: D Carroll
Respondent: PM Miller

SOLICITORS: Applicant: S O'Connor
Respondent: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Williams DCJ

- 1 -

2009/5535

McCLELLAN CJ at CL
R S HULME J
DAVIES J

Tuesday, 7 December 2010

Tianhao Roy WU v REGINA

Judgment

1 McCLELLAN CJ AT CL: I agree with RS Hulme J.

: On 3 July 2009 this Applicant for leave to appeal was sentenced by Williams DCJ in respect of 3 offences. The offences and the sentences imposed were:-

(i) On 21 December 2007, the supply of a commercial quantity of a prohibited drug, viz. 32.4 grams of Nexus – imprisonment for a period of 6 years, including a non-parole period of 4 years both periods commencing on 21 December 2007;

3 The effective sentence thus imposed consisted of a full term of 10 years including a non-parole period of 7 years.

4 Pursuant to s 25(2) and s 33 of the Drug Misuse and Trafficking Act 1985, the first of his offences rendered the Applicant liable to imprisonment for 20 years and the second and third to imprisonment for life. Standard non-parole periods of 10 years and 15 years respectively are prescribed for the…

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 Wu v The Queen

Details

AGLC: Wu v The Queen [2010] NSWCCA 286
Case: [2010] NSWCCA 286
Decision Date: 7 December 2010

CaseChat Overview and Summary

Tianhao Roy Wu appealed against his conviction and sentence for drug supply offences to the New South Wales Court of Criminal Appeal. The primary issue before the Court was whether the sentence imposed on the Applicant was manifestly excessive. The Court considered the arguments raised by the Applicant's counsel, including the application of the totality principle and the relevance of the purity of the drugs. The Court also took into account the Applicant's age, limited profit motive, and the absence of any significant organisation. After reviewing relevant case law and statistics, the Court concluded that while the sentences imposed were severe, they were not manifestly excessive. However, the Court found that the relationship between the non-parole periods and the head sentences did not comply with the requirement of section 44(2) of the Crimes (Sentencing Procedure) Act. The Court decided to reduce the non-parole period for the offences to 5 years, considering the Applicant's youth and the fact that it was his first time in custody. The final orders of the Court were to grant leave to appeal, allow the appeal, confirm the sentence for one charge, quash the sentences for the other two charges, and impose new sentences with reduced non-parole periods.

Orders