Application by Xiao Feng Wang pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825

Supreme Court New South Wales

Medium Neutral Citation: Application by Xiao Feng Wang pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825 Hearing dates: On the papers Decision date: 19 June 2014 Before: Hoeben CJ at CL Decision: Application refused. Catchwords: APPLICATION - Application for inquiry into sentence pursuant to s78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentencing infected by Muldrock error - offence of supplying a large commercial quantity of a prohibited drug and supplying a trafficable quantity of a prohibited drug - conviction after trial - Court of Criminal Appeal did not give the standard non-parole period determinative significance - application refused. Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 (NSW). Cases Cited: Bolt v Regina [2012] NSWCCA 50 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Xiao Feng Wang v R [2009] NSWCCA 223 Category: Principal judgment Parties: Xiao Feng Wang - Applicant Regina - Respondent Representation: Counsel: Solicitors: Legal Aid NSW - Applicant Crown Solicitor's Office - Respondent File Number(s): 2013/215592

Judgment 1HIS HONOUR: Decision Nature of Application The applicant, Xiao Feng Wang, has applied for an inquiry into his sentence pursuant to s78(1) Crimes (Appeal and Review) Act 2001 (the Act). The application seeks the referral of a sentence to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. 2The applicant maintains that there is a doubt or question as to a mitigating circumstance in the case, namely that the applicant's sentencing was infected by "Muldrock error" in that the standard non-parole period was given undue emphasis in the sentencing process, contrary to the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3In 2006 the applicant was convicted after a trial in the NSW District Court before her Honour Judge Sweeney and a jury of the following offences. (1) One count of supplying a large commercial quantity of a prohibited drug, contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is life imprisonment. The offence carries a standard non-parole period of 15 years. (2) One count of supplying a trafficable quantity of ecstasy contrary to s25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is imprisonment for 15 years. The applicant also pleaded guilty to one count of assaulting a police officer, contrary to s58 of the Crimes Act 1900. The maximum penalty for this offence is imprisonment for 5 years. 4On 3 November 2006 Sweeney DCJ sentenced the applicant to concurrent sentences as follows: (1) For supplying a large quantity of a prohibited drug - imprisonment for 20 years with a non-parole period of 15 years commencing 12 July 2005. (2) For supplying a trafficable quantity of a prohibited drug, imprisonment for 3 years with a non-parole period of 2 years and 3 months commencing 12 July 2005. (3) For assaulting a police officer - a fixed term of imprisonment for 1 year, commencing 12 July 2005. Factual background 5On 12 July 2005 at about 7pm at Strathfield Park, Mr Wang was observed to be standing near a telephone box with some other men. A car pulled up at that telephone box and Mr Wang got into the car. The car drove about 100 metres up the road and stopped at a bus stop. Mr Wang got out of the car holding a bag which was later found to contain almost 5000 ecstasy pills. 6The police officer in relation to the assault charge, Detective Tse, was across the road from the bus stop. She announced her office and went towards Mr Wang. There was a struggle over the bag which he held. Eventually Mr Wang was able to extricate himself from the bag, he pushed the bag into the chest of Detective Tse which caused her to fall backwards and land on the ground. He then ran away. 7Mr Wang having left Strathfield Park was later detected by police to be at a unit at Belfield. Mr Wang said he was living in that unit, although surveillance suggested that he may also have been spending part of his time at other premises. The applicant left the Belfield premises with a bag, got into a car and was driven a short distance whereupon he was arrested after the vehicle was stopped. 8In the bag there were some personal belongings, including some clothing and a further 80 ecstasy tablets, which had the same appearance and the same Mitsubishi logo and were analysed later to have the same level of purity as the 5000 tablets which were contained in the bag at Strathfield Park. The quantity of those pills was weighed at 50.93 grams and the trafficable quantity is .75 of a gram. In terms of the large commercial quantity charge, the large commercial quantity specified for the drug (MDMA) is .5 of a kilogram and those drugs were weighed at 1464.46 grams. Proceedings in the District Court and Court of Criminal Appeal 9It is accepted that Sweeney DCJ in her sentencing judgment did give determinative significance to the standard non-parole period when sentencing for the large commercial quantity offence. That, however, does not end the matter. The applicant sought leave to appeal against his sentence. Judgment in that matter was handed down in the Court of Criminal Appeal on 10 September 2009 (Xiao Feng Wang v R [2009] NSWCCA 223 (Giles JA, Hidden and McCallum JJ). The Court granted leave and allowed the appeal. In relation to the supply of a large commercial quantity, the applicant was re-sentenced to imprisonment with a non-parole period of 12 years commencing 12 July 2005 with a balance of term of 4 years. 10The basis of the appeal was described by Hidden J as follows: "16 ... 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." 11Hidden J (with whom Giles JA and McCallum J agreed) said in relation to the first basis for the appeal: "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. ... 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." 12Hidden J then set out the cases to which the Court had been referred and noted in relation to each case the facts and the finding as to the objective seriousness of the offending. Having carried out that exercise, his Honour concluded: "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." 13As a result of that finding of error, the Court of Criminal Appeal's discretion to re-sentence the applicant was enlivened. In doing so, Hidden J used the instinctive synthesis approach described in Markarian v The Queen [2005] HCA 25; 228 CLR 357 which was subsequently approved by the plurality in Muldrock. Hidden J also took into account up to date information which related to the applicant's conduct while in custody. It was on that basis that the applicant was re-sentenced. Applicant's submissions 14The applicant submitted that the sentencing judgment of Sweeney DCJ gave the standard non-parole period determinative significance and thus "Muldrock error" had occurred. The applicant submitted that even though the Court of Criminal Appeal had upheld the challenge to her Honour's judgment based on that proposition, its judgment was still heavily influenced by the standard non-parole period which was still given primary significance. The applicant submitted that Hidden J still used erroneous reasoning when approaching the question. 15The applicant submitted that had the Court of Criminal Appeal applied the correct principles in considering the applicant's appeal, a substantially lesser sentence would have been imposed. 16The applicant submitted that this approach by the Court of Criminal Appeal should cause unease or disquiet thereby warranting the referral of the case back to the Court of Criminal Appeal for consideration. When referring to the "correct approach" to sentencing, the applicant relied upon the observations of McCallum J in Bolt v Regina [2012] NSWCCA 50 where her Honour said: "11 In Muldrock, the High Court held (at [25]) that Way was wrongly decided. Specifically, the Court held that it was an error to characterise s 54B(2) as being framed in mandatory terms, requiring the Court to take the standard non-parole period as the starting point for an offence assessed as being in the middle of the range. The Court held that the correct approach was to identify all the factors relevant to sentence (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence given all those factors (at [26]). The Court specifically rejected the two-staged approach of beginning with an assessment as to whether the offence fell within the middle of the hypothetical range and, if it did, turning to the inquiry as to matters that justify a longer or a shorter period (at [28])." Consideration 17I do not accept that "Muldrock error" has been made out in this matter. If the only judgment under consideration were that of Sweeney DCJ my conclusion would be otherwise. However, since the Court of Criminal Appeal found error in her Honour's judgment and re-exercised the sentencing discretion for itself, it is the judgment of the Court of Criminal Appeal which has to be considered not that of Sweeney DCJ. 18A proper reading of the judgment of the Court of Criminal Appeal makes it clear that albeit before Muldrock, the Court identified the very error to which the applicant has adverted in his submissions. The Court regarded as erroneous her Honour's excessive focus on the standard non-parole period. Apart from identifying this error in her Honour's approach, the Court of Criminal Appeal did not otherwise refer in terms to the standard non-parole period and in particular did not do so when re-sentencing the applicant. 19It is true that one of the bases for the intervention of the Court of Criminal Appeal was a finding of error in her Honour's characterisation of the objective seriousness of the offence. The reference to objective seriousness, however, and the Court of Criminal Appeal's approach to it is not of itself indicative of error. On the contrary, the plurality in Muldrock recognised the importance of determining the objective seriousness of an offence as part of the overall sentencing process. 20In Muldrock the plurality said: "27 Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 21A proper reading of the Court of Criminal Appeal decision shows that the Court focused on the very issue which the applicant has identified in this application, identified error and taking all relevant information into account re-sentenced him. Accordingly, there is no basis for the submission that were this matter to once again come before the Court of Criminal Appeal, it would be dealt with in any different way. It follows that I do not entertain any doubt or question as to the mitigating circumstances in the applicant's case. 22The application is refused.