Xiao Feng WANG v R

The application 16 Mr Boulten SC, for the applicant, relied on written submissions prepared earlier by Mr Pickin of counsel, together with his own supplementary written submissions, developed succinctly in oral argument. Similarly, the Crown prosecutor before us relied upon written submissions previously prepared by another prosecutor and supplemented them with his own. The application was presented on two distinct but related bases: that her Honour erred in her approach to the standard non-parole period and that the sentence is manifestly excessive. 17 Put shortly, Mr Boulten argued that it was not open to her Honour to have found that the offence fell within the mid range of objective seriousness. In any event, it was argued, a departure from the standard non-parole period was warranted by the applicant's subjective case and there should have been a finding of special circumstances. Generally, Mr Boulten submitted that her Honour allowed the standard non-parole period to dominate the exercise of her sentencing discretion in a manner inconsistent with the approach to the relevant legislation expounded in R v Way [2004] NSWCCA 131, 60 NSWLR 168. 18 That seminal decision about the approach to the provisions relating to standard non-parole periods in Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act places those provisions within a framework which recognises and retains the broad discretion which has always attended the sentencing exercise. Importantly for present purposes, the court said at [131]: What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act. 19 With respect to her Honour, there is some force in Mr Boulten's argument. In particular, her observation that the applicant's prospects of rehabilitation and low to moderate prospects of recidivism were not "striking", so as to warrant a departure from the standard non-parole period, concerns me. Whether there should be such a departure depends upon an assessment of the objective and subjective factors peculiar to each case, and there is no requirement that an offender's subjective case, or any part of it, should rise above some notional threshold before the standard non-parole period can be ameliorated. However, I find it unnecessary to express a concluded view about this aspect of Mr Boulten's argument because I am satisfied that it was not open to her Honour to assess the objective gravity of the offence as she did. 20 In so saying, I am mindful of the respect which this Court affords to a sentencing judge's assessment of that matter: see R v Deng [2007] NSWCCA 216, 176 A Crim R 1, per James J at [62] ff and the cases there referred to. Nevertheless, her Honour's function was to determine where the applicant's offence fell within the range of objective gravity of offences of its kind, that is, the supply of the large commercial quantity of ecstasy. Undoubtedly, that assessment was bedevilled by the paucity of evidence of the applicant's involvement in the offence. 21 Mr Boulten challenged her Honour's finding that there was no evidence that the applicant was acting with others. However, for this purpose he relied upon evidence given at the trial which was not before us and which we cannot evaluate. It is true, as Mr Boulten pointed out, that the offence is founded upon the applicant's possession for a brief time of drugs taken from a car which had been used to convey them to the Strathfield area. Mr Boulten acknowledged that it was open to her Honour to be satisfied that the applicant was more than a mere courier, particularly in the light of his behaviour in returning to the Belfield premises and retrieving the remaining tablets. Nevertheless, there is force in Mr Boulten's submission that her Honour was left to assess the seriousness of the offence "in somewhat of a factual vacuum". 22 That said, the principal focus of Mr Boulten's argument was her Honour's reference to the quantity of ecstasy involved and her contrast of the applicant's criminality with that of a street dealer. As I have said, her Honour found that quantity to suggest that he was at a higher level in a "notional hierarchy" of people dealing with drugs of that kind. From those observations it appears that her Honour was assessing the place of the applicant's criminality in the range of drug dealing generally, rather than confining it to the supply of the large commercial quantity. As Mr Boulten rightly pointed out, any offender in possession of drugs in the large commercial quantity for the purpose of supply must occupy a position in the upper echelon of drug dealing generally, and the criminality of such an offender will inevitably be greater than the type of street dealer to whom her Honour referred. 23 While acknowledging that the assessment of the objective gravity of an offence is a matter about which reasonable minds might differ and that each case must turn on its own facts, it is instructive to examine how this Court made that assessment in a number of cases involving the large commercial quantity of ecstasy to which Mr Boulten referred us. Most of these were Crown appeals. 24 In R v Knight & Biuvanua [2007] NSWCCA 283, 176 A Crim R 338, the charge against the respondent, Knight was founded upon her possession of almost 1 kg of ecstasy but the offence was committed against the background of her having been involved in the business of supply of that drug from her home over a period of time. She had controlled a syndicate involving a number of male drug runners, who sold the ecstasy on her behalf and returned the profits to her. Not surprisingly, Howie J in the leading judgment evaluated her criminality as "well above the midrange in seriousness": [50]. 25 Edwards v R [2008] NSWCCA 281 was an unsuccessful appeal against sentence by an offender who had been involved in a business of supplying ecstasy over a period of more than 3 months. The amount supplied was 1.68 kilograms. McClellan CJ at CL held that it would have been open to the sentencing judge to have found the offence to be above the mid-range: [8]. 26 In R v Stankovic [2006] NSWCCA 229, the respondent had been involved as a labourer in the manufacture of 44 kilograms of ecstasy. Grove J assessed the objective seriousness of this offence as "at least in the middle of the range": [19]. 27 In R v Stricke [2007] NSWCCA 179, the respondent had committed two offences involving the large commercial quantity. The first was the sale of 5,000 ecstasy tablets, weighing 1.2 kilograms, to an undercover police officer. The second was the supply of a further 18,000 ecstasy tablets to the same undercover officer, that quantity being part of an agreement to supply some 25,000 tablets. Hislop J, delivering the leading judgment, placed the second offence at at least the mid range, but saw the first offence as "a little below that level": [21]. 28 In R v Gao & Lim [2007] NSWCCA 343, the respondent, Gao sold 2,000 ecstasy tablets, weighing a little over 568 grams, to an undercover officer, while Lim agreed to supply 5,000 tablets, weighing between 1 kilogram and 2.5 kilograms, to the officer. Latham J characterised Gao's offence as "slightly below the mid-range of objective gravity": [25], and Lim's as "below the mid-range": [30]. 29 R v Thompson [2005] NSWCCA 340, 156 A Crim R 467 was a successful appeal by an offender who had pleaded guilty. Mason P assessed his role as that of a "substantial street dealer operating as a principal involved in 'wholesale' and 'retail' supply of ecstasy, but as a one-man show": [42]. Earlier in the judgment, his Honour observed that, if the matter had gone to trial, the offender would have been "a candidate for imposition of the standard non-parole period as the offence may reasonably be characterised as one which lies in the middle of the range of objective seriousness for an offence of this type": [23]. 30 It will be seen that, unlike the present case, the level of involvement of the offenders in these cases was able to be described with some particularity. Moreover, in most of them the offenders' criminality was demonstrably more serious than that which could be established against the present applicant. This lends support to the submission, which I accept, that her Honour fell into error in her assessment of the objective gravity of his offence. In my view, it falls somewhat below the mid range. That being so, it is unnecessary to address separately Mr Boulten's complaints about the weight her Honour gave to the applicant's subjective case and her declining to find special circumstances. 31 Accordingly, the discretion of this Court to re-sentence the applicant is enlivened. That task is assisted by the stance taken by the Crown in relation to the remaining ground of appeal, that is, that the sentence is manifestly excessive. The Crown prosecutor who drew the original written submissions acknowledged that, in the light of the decision in Thompson (supra), "there may be scope for some intervention by this Court". Similarly, his colleague who appeared before us acknowledged in oral argument the merit of the ground of manifest excess, saying that "considering all of the material that was before her Honour and consistent with her Honour's findings, there may be some scope" for intervention. 32 That the Crown's concession was appropriate is apparent not only from the decisions of this Court to which Mr Boulten referred us, but also from the Judicial Commission's statistics for sentences for this offence since the introduction of the standard non-parole period. From the figures for all offenders, 36 cases, it emerges that her Honour's sentence of 20 years imprisonment is the highest recorded. In addition to the cases which I have mentioned, Mr Boulten took us to the Crown appeal in R v Nikolic [2007] NSWCCA 232, the co-offender of Stankovic, and the unsuccessful appeal by the offender in Sukkar v R [2007] NSWCCA 298. 33 All these cases were concerned with sentence after pleas of guilty. In some of them the offenders had also been sentenced for other related offences, and considerations of totality arose. The Crown appeals in Stankovic, Nikolic, Stricke, and Gao & Lim were successful and, of course, in re-sentencing the Court exercised the restraint appropriate in cases of that kind. Knight & Biuvanua can be left out of account, because it involved discretionary constraints in addition to those usually attendant upon a Crown appeal. Of the 3 cases in which offenders appealed against sentence, this Court intervened in Thompson but upheld the sentences at first instance in Sukkar and Edwards. 34 In the light of the Crown's concession, it is unnecessary to go to the detail of the facts of these cases and the subjective circumstances of the offenders. It is sufficient to say that all of them, including Nikolic and Sukkar, disclose a level of criminality greater than that proved against the applicant. 35 Putting aside Edwards, to which I shall return, sentences in the cases ranged, in round figures, from 10 to 13 years and non-parole periods, again in round figures, from 6 to 9 years. The head sentences were arrived at after discounts for pleas of guilty and, in Stankovic and Sukkar, some assistance to the authorities. Starting points of sentence before the application of those discounts ranged from roughly 11 years to about 19 ½ years. (Sukkar appears to be within that range even though the sentencing judge had not quantified a discount for the offender's plea and his willingness to assist the authorities: see the leading judgment of Hulme J at [14].) 36 Edwards stands out somewhat from the range disclosed by the other cases. That offender had been dealt with for other drug offences as well as the supply of the large commercial quantity of ecstasy, but the sentence for that major offence, which this Court upheld, was imprisonment for 17 years with a non-parole period of 10 years. He had been allowed a 25% discount for his pleas of guilty, so that the starting point for that offence must have been in the order of 23 years. However, in dismissing the appeal the Court was influenced by the fact that for the other offences, themselves serious, the offender had received fully concurrent sentences, so that the 17 year sentence was seen as an appropriate reflection of the whole of his criminality: see the leading judgment of McClellan CJ at CL at [12], [24] - [26]. In any event, as I have said, this was another case in which the established objective gravity of the major offence was greater than that of the present applicant. 37 Accordingly, I am satisfied that this Court should intervene. In the event of re-sentence, we received an affidavit by the applicant's solicitor annexing copies of a number of certificates which attest to his continued efforts to further his education while in custody. Having regard to all the circumstances, including the applicant's subjective case, I consider that the appropriate sentence is imprisonment for 16 years. I would not find special circumstances. The application of the statutory ratio would produce a non-parole period of 12 years. In my view, a minimum term of that length is necessary to reflect the applicant's criminality, while affording him the opportunity of a period on parole adequate to foster his rehabilitation. 38 In respect of the sentence passed on the first count in the indictment, I would grant leave to appeal, allow the appeal and quash the sentence passed in the District Court. In lieu, I would sentence the applicant on that count to a non-parole period of 12 years, commencing on 12 July 2005 and expiring on 11 July 2017, and a balance of term of 4 years, commencing on 12 July 2017 and expiring on 11 July 2021. 39 McCallum J: I agree with Hidden J.