New South Wales
Court of Criminal Appeal
CITATION: Xue v Regina [2009] NSWCCA 227 HEARING DATE(S): 02/09/2009
JUDGMENT DATE:
10 September 2009JUDGMENT OF: Tobias JA at 1; Hoeben J at 2; McCallum J at 70 DECISION: Leave to appeal granted.
The appeal is dismissed.CATCHWORDS: Criminal law - sentence appeal - whether parity is a consideration when assessing objective seriouisness of offence - whether refusal to find special circumstances constituted error - whether parity principles applied where co-offender not involved - whether parity principle applied to co-offender. LEGISLATION CITED: Drugs Misuse and Trafficking Act 1985 CATEGORY: Principal judgment CASES CITED: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Meager v Regina [2009] NSWCCA 215
Mulato v Regina [2006] NSWCCA 282
Regina v Araya [2005] NSWCCA 283
Regina v Gao; Regina v Lim [2007] NSWCCA 343
Tatana v Regina [2006] NSWCCA 398PARTIES: Li Min Xue - Applicant
Regina - Respondent CrownFILE NUMBER(S): CCA 2007/16010013 COUNSEL: Mr MP King - Applicant
Mr P Leask - Respondent CrownSOLICITORS: Baker Ryrie Rickards Titmarsh - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent CrownLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/11/0172 LOWER COURT JUDICIAL OFFICER: RA Hulme DCJ LOWER COURT DATE OF DECISION: 20/06/2008
2007/16010013
Thursday 10 September 2009TOBIAS JA
HOEBEN J
McCALLUM J
1 TOBIAS JA: I agree with Hoeben J.
2 HOEBEN J: On 20 June 2008 the applicant was sentenced in respect of the following charge by RA Hulme DCJ. Between 21 December 2005 and 5 January 2006 at Sydney – supplying a prohibited drug, namely 3,4- Methylenedioxymethylamphetamine (MDMA) in an amount not less than a large commercial quantity for that drug contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (maximum penalty imprisonment for life with a standard non-parole period of 15 years).
3 The applicant pleaded guilty to this offence. His Honour passed the following sentence:
- “A term of imprisonment of 13 years and 6 months with a non-parole period of 10 years commencing 26 July 2007 and expiring 25 July 2017 and a balance of term of 3 years and 6 months expiring 25 January 2021”.
Factual Background
4 On the evening of 22 December 2005 at Darling Harbour an undercover police operative entered into negotiations with Peng Gao for the supply of 1000 MDMA tablets. During the negotiations, Gao contacted the applicant who told him to go to the Hurstville RSL Club and that he would have “it” soon. The applicant subsequently supplied Gao with 1000 MDMA tablets. Gao in turn supplied the undercover police officer at Darling Harbour with the tablets in return for $15,000.
5 The tablets had a purity of 26.5 percent and weighed 284 grams.
6 Later that evening, Gao contacted the applicant by telephone and informed him that the deal had been done. The applicant said “Good, I’ll…
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- AGLC
- Xue v Regina [2009] NSWCCA 227
- Case
- [2009] NSWCCA 227
- Decision Date
CaseChat Overview and Summary
The Court addressed the principle of parity, noting that it is a relevant consideration in assessing the objective seriousness of an offence. However, the Court found that the trial judge did not err in refusing to find special circumstances, as the circumstances did not warrant such a finding. The Court held that the principle of parity could apply where a co-offender is not involved in the appeal, but it was not necessary to apply the principle in this case due to the specific facts and the absence of a co-offender in the appeal. The Court concluded that the principle of parity was not relevant to the co-offender as they were not a party to the appeal.
The Court found that the sentence imposed was not manifestly excessive, and therefore, the appeal was dismissed. The Court emphasised that the principle of parity is an important consideration in sentencing but should be applied judiciously, taking into account the unique circumstances of each case. The Court's decision underscored the importance of a balanced approach to sentencing, recognising the need for individualised assessments while also considering broader principles such as parity.
The final orders of the Court were that the appeal against sentence was dismissed, and the original sentence was upheld. The Court's reasoning highlighted the need for a nuanced approach to sentencing, balancing individual circumstances with broader legal principles. The decision provides clarity for practitioners on the application of parity in sentencing, reinforcing the importance of a case-by-case analysis.
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Background
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