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Xue v Regina

Xue v Regina

Case [2009] NSWCCA 227 10 September 2009

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New South Wales
Court of Criminal Appeal

CITATION: Xue v Regina [2009] NSWCCA 227

HEARING DATE(S): 02/09/2009

JUDGMENT DATE:
10 September 2009

JUDGMENT 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 398

PARTIES: Li Min Xue - Applicant
Regina - Respondent Crown

FILE NUMBER(S): CCA 2007/16010013

COUNSEL: Mr MP King - Applicant
Mr P Leask - Respondent Crown

SOLICITORS: Baker Ryrie Rickards Titmarsh - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

LOWER 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

TOBIAS JA
HOEBEN J
McCALLUM J
Thursday 10 September 2009

Lee Min XUE v REGINA

Judgment

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…

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 Xue v Regina

Details

AGLC: Xue v Regina [2009] NSWCCA 227
Case: [2009] NSWCCA 227
Decision Date: 10 September 2009

CaseChat Overview and Summary

The appellant, Xue, appealed against his sentence following a conviction for drug trafficking. The High Court of Australia was tasked with determining the correctness of the sentence and the application of parity principles in sentencing. The central issues before the Court were whether the principle of parity should be considered when assessing the objective seriousness of an offence, whether the refusal to find special circumstances constituted an error, and whether the principle of parity was appropriately applied to the co-offender who was not involved in the appeal. The Court also considered whether the principle of parity applied to the co-offender in the sentencing process.

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.

Orders