Wang v R - [2023] NSWCCA 208 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

Wang v R

[2023] NSWCCA 208

Court of Criminal Appeal (NSW)|2023-07-21|Before: Kirk JA, Adams J, Hulme AJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-07-21

Before

Kirk JA, Adams J, Hulme AJ

Catchwords

(2013) 231 A Crim R 413 Dungay v R [2020] NSWCCA 209 Green v The Queen
Quinn v The Queen (2011) 244 CLR 462

Source

Original judgment source is linked above.

Catchwords

(2013) 231 A Crim R 413 Dungay v R [2020] NSWCCA 209 Green v The QueenQuinn v The Queen (2011) 244 CLR 462

Judgment (22 paragraphs)

[1]

HEADNOTE [This headnote is not part of the judgment] Mr Li Wang pleaded guilty to three drug offences: one of supplying an indictable quantity of methylamphetamine and two of supplying a large commercial quantity of methylamphetamine. The first offence related to 31.64g of the drug which was found upon police searching Mr Wang's home unit on 31 October 2014. He was charged and released on bail. On a number of occasions between 21 March and 28 April 2015 Mr Wang supplied quantities of methylamphetamine totalling about 1.5kg and an indictable quantity (about 28g) of cocaine to an undercover operative. On 14 May 2015, in conjunction with co-offenders including Zhengyi Zhang and Si Ji Zhang, he was involved in the supply of almost 2kg of methylamphetamine to the undercover operative. King SC DCJ sentenced Mr Wang on 23 June 2017 to an aggregate term of imprisonment for 13 years and 6 months with a non-parole period of 10 years for the three offences of supplying methylamphetamine. Offences of supplying cocaine, dealing with the proceeds of crime ($94,120 in cash) and knowingly participating in a criminal group were taken into account. Mr Wang sought an extension of time in which to apply for leave to appeal on seven grounds including one which raised a contention that the indicative sentence assessed for the last of the supply offences was erroneously severe when compared to sentences imposed upon the co-offenders Zhengyi Zhang and Si Ji Zhang. The starting point before reduction for Mr Wang's early plea of guilt for this offence was 16 years whereas the starting points for these co-offenders were 11 years and 12 years respectively. They were accepted to be the "facilitators of the supply" and were "in control of the transaction". Mr Wang's role in this supply involved no greater criminality than theirs. In written submissions he contended he was "an errand boy". The Court held (R A Hulme AJ, Kirk JA and N Adams J agreeing): allowing the extension of time, granting leave to appeal, upholding the appeal and resentencing: (1) At [36]-[39]: Mr Wang's contention that he was simply "an errand boy" could not stand in light of concessions that were made in the court below by senior counsel then appearing for him that he was not a "mere courier" and was "at the very highest, in the mid-range of the hierarchy". His role was "critical" in that he was "receiving the methylamphetamine from a person … passing it onto the undercover operative, getting the money, and then handing the majority of that money over to the persons from whom he received the methylamphetamine. These submissions were consistent with agreed facts which also included that Mr Wang was receiving $10,000 for each kilogram supplied. (2) At [67]-[69]: There were inconsistent findings made about the objective seriousness of the offence in that for Mr Wang the assessment was "above midrange" and for the co-offenders it was "at least midrange". (3) At [70]-[76]: There was an unjustifiable disparity in the indicative sentence assessed for the third supply offence for Mr Wang whereby the starting point before discounting was 16 years while for the others it was 11 and 12 years. This was not justified on the basis that Mr Wang was also being sentenced for earlier supply offences, or that additional offences listed on Form 1 documents were being taken into account. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; (2011) HCA 49 applied. (4) At [2]-[3], [77]: In the light of the success of the parity contention it is unnecessary to deal with the other grounds of appeal. There is no rule of practice that requires the Court to engage in discussion of multiple grounds of appeal which have no merit when it is readily apparent that a complaint about parity should succeed: Ritchie v R [2023] NSWCCA 153 at [2]-[12] referred to.

[2]

JUDGMENT

KIRK JA: I agree with R A Hulme AJ.
N ADAMS J: I agree with the orders proposed by R A Hulme AJ for the reasons provided. Given that the complaint of disparity in relation to count 3 is clearly made out, I agree that it is unnecessary to consider the other complaints made by the applicant which appeared to include a complaint of manifest excess. As his Honour has observed at [77], although there is a rule of practice that a ground raising a complaint concerning parity assumes that the sentence is otherwise correct, that does not mean that in an application for leave to appeal against sentence where complaint is made of both disparity and manifest excess, this Court is required in every case to consider manifest excess first. As R A Hulme AJ has observed, there is no rule of practice that this Court must consider grounds of appeal that have no merit when the disparity ground is clearly made out. I would add to that comment that the order in which the grounds of appeal are to be considered by this Court could also depend on the relative strength of each ground, the number and subject of the grounds and their relative complexity.
As for the observation in Ritchie v R [2023] NSWCCA 153 at [11] that the practice of considering a ground of manifest excess before a parity ground is "almost universally followed", I respectfully disagree. For example, in addition to the cases cited at [11] in Ritchie v R, I note that Johnson J (with whom Hoeben CJ at CL and I agreed) considered the parity ground first in Rodgers v R [2018] NSWCCA 47 and that in Dungay v R [2020] NSWCCA 209 I (Bell P and Davies J in agreement) upheld the parity ground first and did not consider it necessary to go on to consider the claim of manifest excess at all. In circumstances where it is difficult to comprehend how the order in which such grounds were considered could ever change the ultimate result, it seems to me that it remains open to this Court to consider the grounds in whichever order most efficiently disposes of the appeal.
R A HULME AJ: Mr Li Wang seeks an extension of time in which to apply for leave to appeal against a sentence imposed by his Honour Judge King SC in the District Court on 23 June 2017.
His Honour imposed an aggregate sentence of imprisonment for 13 years and 6 months with a non-parole period of 10 years for three serious drug supply offences with further offences taken into account.
There were two indictments, each containing offences against the Drug Misuse and Trafficking Act 1985 (NSW). The first indictment contained a single count of supplying an indictable quantity of methylamphetamine (s 25(1)) and the second contained two counts, each of supplying a large commercial quantity of methylamphetamine (s 25(2)). The details, including the maximum penalty, standard non-parole period where applicable and the indicative sentences assessed by his Honour are in the table below. For ease of reference, the offences will be referred to as "Counts 1, 2 and 3".
The applicant asked the judge to take into account three further offences listed on Form 1 documents: supply indicatable quantity of cocaine, knowingly participate in a criminal group, and knowingly deal with the proceeds of crime. The latter two offences are contrary to s 93T(1A) and s 193B(2) of the Crimes Act 1900 (NSW). Count Offence Max SNPP Indicative Sentence 1 Supply 31.64g methylamphetamine at Sydney on 31.10.14 15 yrs - 30 mths Supply large commercial quantity (1497.16g) methylamphetamine at Zetland and Ryde between 21.3.15 and 28.4.15 Form 1: 10 yrs 2 Supply 27.95g cocaine on 28.4.15 Life 15 years NPP 7 yrs 6 mths and Knowingly participate in criminal group on 14.5.15 Supply large commercial quantity (1996.9g) methylamphetamine on 14.5.15 at Kensington 12 yrs 3 Form 1 Life 15 years NPP 9 yrs Knowingly deal with proceeds of crime ($94,120)

[7]

Count 3: Supply large commercial quantity methylamphetamine 14 May 2015

At about midday on 14 May 2015 Mr Wang and co-offenders Zhengyi Zhang, Si Ji Zhang met and went to a dumpling bar at the East Village shopping centre in Zetland. After lunch, Mr Wang and Si Ji Zhang drove in Mr Wang's car to the Supa Centa Moore Park (on the opposite side of the Eastern Distributor). Mr Wang met "George" and entered his car. Si Ji Zhang stayed in Mr Wang's car.
Meanwhile, Zhengyi Zhang met up with Junjie Liang and Bin Sun outside the East Village shopping centre. They loitered in this area for a while until Zhengyi Zhang walked away and returned with two brown bags he had received from an unknown person. He gave one each to Liang and Sun. They then walked across to the Supa Centa carpark to meet up with Mr Wang and Si Ji Zhang. Si Ji Zhang alighted from Mr Wang's car and met the three and they all then approached "George's" car. Liang and Sun were still in possession of the brown bags. Seemingly with some caution but following directions from Zhengyi Zhang and Si Ji Zhang, Sun entered the rear seat of "George's" car and Liang handed him the bag he was holding.
The agreed facts state: "At this point is it clear that Z Zhang and S Zhang are the facilitators of the supply of the prohibited drug and are in control of the transaction".
Sun handed the two brown bags to George. Mr Wang and Zhengyi Zhang were also in the car at this point. Mr Wang and "George" then alighted. Mr Wang and the co-offenders were arrested.
Located in each brown bag was 997.2g and 999.7g of methylamphetamine. In another bag there were five BlackBerry phones. The agreed facts do not indicate where this bag came from but state: The investigation revealed Wang is a facilitator and distributor of encrypted BlackBerry mobile devices to a number of criminal syndicates to be used for the purpose of avoiding detection from law enforcement agencies. Wang earns $200 per device at the sale price of $2200 and $10,000 for the supply of one kilogram of methylamphetamine.
The sentencing judge observed that the use of BlackBerry phones and encrypted communications are commonly associated with drug, organised crime or other criminal offending. However, Mr Wang was not charged with any offence in relation to his possession of such items and his Honour said he could "hardly take into account on sentence that he might have been doing something that was legal". [3]

[10]

The offender

Mr Wang did not give evidence at the sentence hearing. His senior counsel tendered a psychologist's report, a letter from Mr Wang's mother and some medical documents in relation to her. The following is drawn from that material.
Mr Wang is from Chengdu, China. He was aged 30-31 at the time of the offending. His parents separated before he was born and he hardly saw his father. His mother worked and so he was raised by his grandparents. They died in their sixties and he then went to a boarding school.
Mr Wang came to Australia in 2004 at the age of 20. He obtained permanent residency in 2013. He has returned to China to visit his mother. She is now retired and has some physical health issues. He has generally worked since coming to this country but his income was insufficient to sustain him; he was making more money selling phones imported from China.
Mr Wang gave an account of drug and alcohol consumption that included development of an addiction to ice from the age of 28 in 2012 whereby he was using it several times a week. He had not used drugs since being in custody and resolved never to do so again.
He gave a version of events in relation to the offences. The psychologist said the main thing Mr Wang wished to clarify was that after his arrest in October 2014 he did not want to reoffend but was pressured to do so when his supplier, with feared "gangster" links, pressured him to do so, promising it would only be for a short time.
Psychometric testing revealed extremely severe scores on depression and anxiety while stress rated as moderate.
Mr Wang reported that he felt lonely and isolated in gaol. He had few visits and was able to speak with his mother in China every 10 days. She was his only close family and he worried because of her health problems.
A translated letter from Mr Wang's mother confirmed what he had told the psychologist and a translated Diagnosis Report from the Sichuan Chengdu No 7 People's Hospital confirmed she had hypertension, myocardial ischemia, cerebral atrophy and cerebral arteriosclerosis.
The judge noted that there was nothing in the psychologist's report that explained the offending "other than of course his use of prohibited drugs and his desire to support himself by way of profiting from the supply". [8]
Mr Wang's criminal history contained a single entry; a conviction for dealing with the suspected proceeds of crime on 9-12 March 2011. The Crown tendered the facts of that offence. It involved Mr Wang and a co-offender transporting just over $2.5 million in largely $100 and $50 notes in two suitcases on a train from Perth to Sydney. Mr Wang was sentenced to imprisonment for 12 months with a non-parole period of 7 months.

[11]

Grounds of proposed appeal

Mr Wang endeavoured to formulate seven grounds of appeal with varying degrees of precision. It is unnecessary to deal with them all as there is in my view obvious merit within the first and sixth grounds in terms of a complaint about disparity in relation to Count 3. In short, Mr Wang contends that the judge erred in characterising his role in that offence as more significant than the role played by Zhengyi Zhang and, to a lesser extent, Si Ji Zhang. It is his contention that he was simply an "errand boy" for the supplies made to the undercover operative, "George" in both Counts 2 and 3. He submitted: [9] My role is followed the requirement which is looking for drugs, and then delivered to the undercover agent. I am the bottom level errand boy, not the principal.
Allied to that contention he argues that he should not have received a greater sentence for the Count 3 offence than Messrs Zhang and Zhang received.
In the District Court, senior counsel for Mr Wang submitted that while he was not a "mere courier" he was, "at the very highest, in the mid-range of the hierarchy". She summarised: "he is receiving the methylamphetamine from a person … and he is passing it onto the undercover operative, getting the money, and then handing the majority of that money over to the persons from whom he received the methylamphetamine". She referred to the agreed fact that he was receiving $10,000 for each kilogram which equated to about 10% of the sale price. [10]
Later, Ms Davenport SC accepted that "the role that he played in these offences while it was, on one view of it, critical to the carrying out of the supply to the undercover operative, he nevertheless was acting within a hierarchal structure". [11]
These submissions made on Mr Wang's behalf were consistent with what the agreed facts described. The characterisation of his role was perfectly apt. Importantly, the sentencing judge did not say anything to suggest Mr Wang had operated at a higher level.
Reference has been made earlier (at [16]) to the judge's reference to Mr Wang being "the principal in those supplies". In the sense that he was the person who provided the drugs to the purchaser and received the payment, he was. It is not apparent the judge meant any more than that.
Describing himself as a mere "errand boy" seriously understates the gravity of his role. He played a vital role in the supply of substantial quantities of a pernicious drug for significant financial gain. His commission on the large commercial supplies would have been in order of $30,000. He had been actively involved in drug supply for some months as evident from the finding by police at his apartment on 31 October 2014, methylamphetamine (31.64g), scales, gloves, boxes of resealable plastic bags, and $94,000 in cash.
Mr Wang referred to the statement in the agreed facts in relation to Count 3 that, "At this point it is clear that Z Zhang and S Zhang are the facilitators of the supply of the prohibited drug and are in control of the transaction". "This point" was a reference to the time when Liang and Sun were approaching the undercover operative's car carrying the bags of drugs
Mr Wang submitted that Zhengyi Zhang was the "owner" of the drugs and "gave the order to Mr Bin Sun and Min Chun Wu [sic - Junjie Liang] to carry the two bags to the crime scene". In the material tendered in the case concerning Mr Wang there was in fact no evidence as to who was the owner of the drugs.
Mr Wang contends that his role was less significant than the role of Zhengyi Zhang and Si Ji Zhang but points out that Zhengyi Zhang received a sentence of 7 years 8 months with a non-parole period of 5 years 6 months whereas Mr Wang received 12 years with a non-parole period of 9 years. Reference was made to Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 for its discussion of the parity principle.

[12]

Sentencing of Si Ji Zhang

Si Ji Zhang was sentenced for a single offence of knowingly take part in the supply of a large commercial quantity (1996.9g) of methylamphetamine on 14 May 2015. The facts were the same as described above in Mr Wang's case. They included the part about Si Ji Zhang (and Zhengyi Zhang) being a facilitator and in control of the transaction. [12]
Taken into account was an offence on a Form 1 document of knowingly participating in a criminal group, directing activities, contrary to s 93T(1A) of the Crimes Act.
King SC DCJ sentenced Si Ji Zhang on the same day he sentenced Mr Wang, although delivering separate judgments for each case.
His Honour said: The offence involved the offender taking a significant role in relation to the distribution of a substantial quantity of a prohibited drug, being just short of twice the quantity that classifies as a large commercial quantity … The offender took an active role and directed others … His role was significant and substantial in relation to this particular supply.
The objective seriousness was assessed as being, "at least in the midrange, and the offender as having a significant role in relation to that offending".
Si Ji Zhang was aged 22 at the time of the offence. A feature of his subjective case was that he committed the offence only six weeks after being released on parole in respect of a sentence of 14 months with a non-parole period of 8 months for supplying a prohibited drug. His Honour exercised his discretion to completely accumulate the sentence he imposed upon the balance of parole Si Ji Zhang was required to serve.
Si Ji Zhang attributed his addiction to methylamphetamine to his grief concerning the death of his father in 2011. When he was released on parole in early April 2015 he soon relapsed into drug use. He claimed that his addiction developed to a point where he was unable to work and he was then unable to pay for his drugs and so he began working for his dealer to support his habit. That was the context in which he committed the present offence and the previous one.
King SC DCJ was not prepared to accept second hand accounts from the offender because he had lied to a community corrections officer by claiming he was innocent of the offence; such a claim being disavowed by his counsel. There was no acceptable evidence of genuine remorse and his Honour could not find there were good prospects of rehabilitation or a low prospect of reoffending. He declined to find special circumstances.
The sentence imposed was imprisonment for 9 years with a non-parole period of 6 years and 9 months.
The sentencing judge omitted to mention the plea of guilty in his remarks on sentence but in this Court on appeal it was held that he must have taken it into account and allowed a discount of 25%, given the plea was entered in the Local Court: Zhang v R [2018] NSWCCA 82 at [47]-[53]. The starting point before discounting must have been 12 years.

[13]

Sentencing of Zhengyi Zhang

Zhengyi Zhang was sentenced for a single offence of supplying a large commercial quantity (1996.9g) of methylamphetamine on 14 May 2015, with an offence of knowingly participate in criminal group, directing activities, contrary to s 93T(1A) of the Crimes Act.
King SC DCJ sentenced Zhengyi Zhang on 18 May 2018, almost a year after sentencing Wang and Si Ji Zhang. He explicitly referred to his awareness of the sentences imposed upon others and acknowledged the principle of parity.
His Honour repeated what he had said in sentencing Si Ji Zhang: [13] The offence involved the offender taking a significant role in relation to the distribution of a substantial quantity of a prohibited drug, being just short of twice the quantity qualifying as a large commercial quantity … The offender took an active role and directed others ….
The agreed facts were the same as for Mr Wang and Si Ji Zhang except that they did not include the part about Zhengyi Zhang and Si Ji Zhang being facilitators and in control of the transaction. However, for reasons his Honour gave, he concluded: [14] It is clear that the offender was a facilitator of the obtaining and sale of the prohibited drug and significantly in control of the transaction, together with Si Ji Zhang.
Repeating what he had said in respect of Si Ji Zhang, his Honour assessed the objective seriousness being "at least in the midrange and the offender as having a significant role in relation to that offending".
Zhengyi Zhang was aged 21 at the time of the offence. He had no criminal history. He had been using methylamphetamine for about two years and had been in a relationship for about the same period. His partner was described as demanding and requested him to provide funds for them to live a more luxurious lifestyle. He gave this as his reason for participating in the offence.
His Honour found that Zhengyi Zhang was genuinely remorseful and had at least a reasonable prospect of rehabilitation and a low prospect of re-offending.
From a starting point of 11 years, his Honour allowed a reduction of 30% and, with rounding, imposed a sentence of 7 years and 8 months with a non-parole period of 5 years and 6 months.

[18]

Application of the parity principle

There is an unjustifiable disparity in the indicative sentence assessed for Count 3. The starting point before discounting for Mr Wang was 16 years, whereas the starting points for the other two offenders were 12 years and 11 years.
The disparity between the sentences imposed upon Si Ji Zhang and Zhengyi Zhang can be accounted for because the former committed the offence while on parole for a previous drug supply offence and had no favourable subjective matters while the latter had no prior criminal history and favourable findings in relation to remorse, rehabilitation prospects and low prospect of reoffending.
A material point of difference between the case of Mr Wang and the cases concerning the others is that they were only sentenced for one drug supply offence whereas his corresponding offence was a continuation of drug supplies to the same undercover operative which all occurred while he was on bail for the drug supply offence some months before. However, this cannot have had any relevance to the assessment of objective seriousness of the final offence, nor explain the substantially higher starting point adopted. The correct manner of accounting for this feature is by application of the principle of totality in the assessment of the degree of accumulation or concurrency between the sentences for each offence.
Another point of distinction is that the sentences for Counts 2 and 3 take into account Mr Wang's guilt of further offences that were not applicable in the cases of any of his co-offenders. These have the effect of requiring a longer sentence than would otherwise be imposed because of the need to give greater weight to retribution and personal deterrence: Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22].
The proposed appeal is against the aggregate sentence imposed but an error in the assessment of an indicative sentence that could adversely affect the assessment of the aggregate sentence to a material degree would call for potential intervention by this Court by considering whether some other less severe sentence was warranted and should have been passed: Criminal Appeal Act 1912 (NSW), s 6(3). Given the indicative sentence for Count 3 is the largest of the indicative sentences and it represents a substantial proportion of the aggregate sentence, the erroneous disparity in respect of it requires the Court to re-exercise the sentence discretion afresh.

[20]

Resentencing

The facts of the offences have been described above. The assessments of the sentencing judge of the objective seriousness of the offences in Count 1 and 2 should be accepted. For Count 3 the assessment should be the same as for Si Ji Zhang and Zhengyi Zhang, that is, in the middle of the range. Mr Wang's role in relation to Count 3 was somewhat less significant than that of those two but it was, as submitted to the primary judge by Mr Wang's counsel, still one that was "critical". The fact that for each supply the subject of Counts 2 and 3 Mr Wang was to earn a commission of $10,000 per kilogram is indicative of how important his role was regarded by his superior.
The discounts assessed by the judge of 25% for the early pleas of guilty should be maintained.
No evidence was placed before the Court as to any subjective matter that might be taken into account beyond the evidence that was before the District Court.
The COVID-19 pandemic commenced and has run its course during the time Mr Wang has been serving his sentence. It involved hardships that most prison inmates have experienced with limitations on transfers and movements, restrictions on visitors (although perhaps not so significant in Mr Wang's case), suspensions of education, rehabilitation and vocational courses and programs and the like. This should be taken into account in resentencing.
The reduction of the indicative sentence for Count 3 to reflect an appropriate measure of parity with the sentencing of the co-offenders will require that the indicative sentence for Count 2 be re-determined to ensure an appropriate relativity between the two.
Under Ground 5 Mr Wang complained that the judge did not take into account the prospect that he would be deported. The law is clear that this is not a matter that is relevant to sentence: Kristensen v R [2018] NSWCCA 189 at [23]-[35]; Ke v R [2021] NSWCCA 177 at [48]-[51].
An aggregate sentence should be imposed. Taking into account the offences on the Form 1 documents, the indicative sentences should be: Count 1 - supply prohibited drug at Sydney on 31 October 2014 (2014/321172-002) - 2 years 3 months. Count 2 - supply prohibited drug in not less than large commercial quantity at Zetland and Ryde between 21 March 2015 and 28 April 2015 (2015/144749-001) - 8 years 3 months with a non-parole period of 6 years and 2½ months. Count 3 - supply prohibited drug in not less than large commercial quantity at Kensington on 14 May 2015 (2015/144749-002) - 9 years with a non-parole period of 6 years 9 months.
There should be some degree of notional accumulation of these indicative sentences in the formulation of the aggregate sentence as they relate to distinct instances of serious offending. The extent of such accumulation will be moderated in accordance with the principle of totality. The aggregate sentence should be 11 years with a non-parole period of 8 years 3 months.
Mr Wang did not file his Notice of Application for Leave to Appeal until 28 September 2022, well over five years after he was sentenced. He provided an explanation for not filing it in the past two years but made no attempt to explain the inaction for the three years before that. Nevertheless, because there is merit and the Court should resentence, it follows that an extension of time as well as leave to appeal should be granted.

Wang v R

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Judgment (22 paragraphs)

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