Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wang, Dong Pei v R [2016] NSWCCA 161 Hearing dates: 13 July 2016 Date of orders: 12 August 2016 Decision date: 12 August 2016 Before: Hoeben CJ at CL at [1]; Simpson JA at [2]; Price J at [3] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) The aggregate sentence imposed by McClintock DCJ on 8 April 2015 is quashed. (4) The applicant is sentenced to an aggregate sentence of imprisonment of 11 years 6 months consisting of a non-parole period of 7 years 9 months commencing on 13 November 2013 and expiring on 12 August 2021 with a balance of term of 3 years 9 months commencing on 13 August 2021 and expiring on 12 May 2025. (5) The earliest date the applicant will be eligible to be released on parole is 12 August 2021. Catchwords: CRIMINAL LAW – sentence appeal – one count of supplying a commercial quantity of methylamphetamine and one count of supplying a large commercial quantity of methylamphetamine – whether disparity with sentence of co-offender who pleaded not guilty – whether justifiable sense of grievance – whether sentence should be reduced Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s25 Cases Cited: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 Postiglione v R (1997) 189 CLR 295; [1997] HCA 26 R v Draper (unreported, Court of Criminal Appeal (NSW), 12 December 1986) R v Kollas and Mitchell [2002] NSWCCA 491 R v llbay [2000] NSWCCA 251 Category: Principal judgment Parties: Dong Pei Wang (Applicant) Regina (Respondent) Representation: Counsel: I. McLachlan (Applicant) V. Lydiard (Respondent) Solicitors: S. E. O'Connor – Legal Aid NSW (Applicant) C. Hyland – Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/343594 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 8 April 2015 Before: McClintock SC DCJ File Number(s): 2013/343594 Judgment 1. HOEBEN CJ at CL: I agree with Price J and the orders which he proposes. 2. SIMPSON JA: I agree with Price J. 3. PRICE J: Dong Pei Wang ("the applicant") seeks leave to appeal the sentence imposed upon him by McClintock SC DCJ ("the sentencing judge") in the District Court at Sydney on 8 April 2015 for one count of supply of not less than the commercial quantity of a prohibited drug contrary to s25(2) Drug Misuse and Trafficking Act 1985 (NSW) ("DMT Act") and one count of supply of not less than the large commercial quantity of a prohibited drug contrary to s25(2) DMT Act. 4. The prohibited drug in each count was methylamphetamine. At the time of the commission of the offences, the commercial quantity of methylamphetamine was 0.25 kilograms whereas the large commercial quantity was one kilogram. 5. The maximum penalty for the offence of supply of not less than the commercial quantity of methylamphetamine is 20 years imprisonment and/or a fine of $385,000 with a standard non-parole period of 10 years. 6. The maximum penalty for the offence of supply of not less than the large commercial quantity of methylamphetamine is life imprisonment and/or a fine of $550,000 with a standard non-parole period of 15 years. 7. The applicant pleaded guilty in the Local Court to each count and adhered to his pleas in the District Court. He received a discount of 25% for his pleas. 8. An aggregate sentence of 12 years with a non-parole period of 8 years 6 months commencing on 13 November 2013 and expiring on 12 May 2022, with an additional term of 3 years 6 months expiring on 12 November 2025, was imposed by the sentencing judge. 9. The indicative sentences were: 1. Count 1: 6 years with a non-parole period of 4 years 2 months. 2. Count 2: 10 years with a non-parole period of 7 years. 1. There were three co-offenders, Wei Dong Li ("Li"), Li Jing Yu ("Yu") and Wenping He ("HE"), who were subsequently sentenced by District Court judges other than the sentencing judge. HE and Yu were sentenced by M Williams SC DCJ on 23 October 2015. 2. The sole ground of appeal is as follows: "The applicant has a justifiable sense of grievance by reason of a marked disparity between his sentence and the sentence imposed on the co-offender Wenping HE." Facts 1. A lengthy statement of facts was tendered which the sentencing judge summarised in his remarks on sentence. 2. In June 2013, the New South Wales Police Force and the New South Wales Crime Commission commenced an investigation into the criminal activities of Li. During this investigation, undercover police operatives ("UCOs") were permitted to engage with Li and any of his associates regarding the supply of prohibited drugs. Lawful intercepts were organised on Li's telecommunication numbers and surveillance devices were approved by warrant. 3. Between 28 August 2013 and 17 October 2013, UCOs engaged with Li regarding the supply of one kilogram of methylamphetamine. Li said that he wanted to introduce his supplier for the purpose of conducting the transaction. 4. At about 6:30pm on 17 October 2013, Li contacted the UCO and told him that an "Asian handbag" (code for methylamphetamine) was available. They subsequently arranged to meet on 22 October 2013. At 2:33pm on that day, the UCO arranged to meet at the Krispy Kreme at Mascot at about 3:00pm. Li confirmed that the handbag was still available and the price was $205,000. At about 3:55pm that day they met in the Krispy Kreme car park and discussed the proposed supply of one kilogram of methylamphetamine. Li said that he would take the UCO to meet "Jack" for the transaction and gave him a sample of the drug being 0.89 grams, its purity tested at 82%. Li did not request payment for this sample. 5. At 5:55pm, Li and the UCO met at Rose Street, Hurstville. They agreed to meet at the Mascot Krispy Kreme at 7:30pm that evening and Li would bring his associate. At 7:15pm that evening, Li left the Rose Street address and travelled by car to Mascot. 6. At 7:22pm, the applicant and HE left the same address at Rose Street and travelled together in the same car towards Mascot. HE sat in the driver's seat and carried a black shoulder bag; the applicant sat in the front passenger seat and carried a black backpack. At 7:31pm, the applicant telephoned Li and told him that he was on his way. Li travelled past the Mascot Krispy Kreme and on to Zetland. Li contacted the applicant and told him that he had travelled too far and was now travelling back towards Mascot. 7. At 7:41pm, the applicant and HE arrived at the Mascot Krispy Kreme, exited the vehicle and walked around the car park. Li telephoned the applicant again and told him that he had become lost in Zetland (this was corroborated by the UCO's observations). Li provided a description of the UCO's vehicle and told the applicant to approach the driver and introduce himself. At about 7:54pm, the applicant sat in the front passenger seat of the UCO's vehicle and introduced himself as "Jack." They discussed the supply of one kilogram of methylamphetamine. The UCO retrieved a shopping bag containing $205,000 and showed it to the applicant, who then returned to his vehicle, retrieved a black backpack and gave it to the UCO. The applicant opened the backpack in the presence of the UCO revealing a large plastic resealable bag containing a second plastic resealable bag in which was an opaque crystalline substance, later analysed to be 995.7 grams of methylamphetamine at a purity of 81.5%. The applicant gave the UCO the backpack and its contents in exchange for the money (count 1). 8. HE was observed to have remained in the car park throughout the transaction, apparently as a 'lookout.' After the exchange, the applicant and HE returned to their vehicle and a short time later met with Li who had arrived at the car park. The applicant and HE then travelled to Hurstville, where the applicant returned to his premises at Rose Street, and HE then drove on to Carlingford. Li arrived at the applicant's premises in a separate vehicle at about 8:30pm and was observed driving to Liverpool at about 11:00pm that evening. Subsequent intercepted telephone conversations reveal Li received $25,000 for his role. 9. On 24 October 2013, Li contacted the UCO to see whether he was happy with the drugs, conceding that the kilogram was "light", that is, less than the one kilogram that had been agreed. The UCO asked who had weighed it and Li said, "I did it." 10. Between 22 October 2013 and 11 November 2013, the applicant and the UCO conducted telephone negotiations regarding the supply of a further 10 kilograms of methylamphetamine to take place on 13 November 2013. The delay arose because the applicant had to wait for HE's authorisation to proceed. 11. At about 11:14am on 13 November 2013, the applicant left his premises in Hurstville and travelled by taxi to the Kogarah Golf Club car park. The applicant met with the UCO, who showed him a large sum of money. The applicant then made a telephone call. At about 12:39pm, HE and Yu (HE's wife) left their premises in Carlingford and travelled in separate cars to an area near the golf club to meet the applicant. After speaking, HE and the applicant drove to the golf club car park while Yu waited in her vehicle. HE was heard on a listening device to the tell applicant, "It's in the TV", and the applicant assured HE that he had seen the money for the exchange. 12. At about 1:40pm, the applicant and HE met the UCO and showed him the television set in the back of HE's vehicle. Concealed inside the television set were a number of clear resealable plastic bags containing an opaque crystalline substance, later analysed to be 9968.5 grams of methylamphetamine at a purity of 81.5%. The applicant and HE moved the packaged money from the UCO's vehicle to the rear of their vehicle (count 2). They were then arrested. 13. The applicant was taken to Kogarah Police Station where he declined to speak with a solicitor and took part in an ERISP with the presence of a Mandarin interpreter. The applicant admitted the circumstances of his arrest. In relation to count 1, he admitted that he had used the name "Jack", met the UCO on 22 October 2013, delivered a package at the request of someone else and received $10,000 for his role. The applicant denied that HE had driven him to Krispy Kreme at Mascot on 22 October 2013. In relation to count 2, the applicant admitted to arranging the delivery of 10 kilograms of methylamphetamine at Kogarah Golf Club, for which he was to receive $100,000. The applicant declined to name anyone else involved in the supply arrangements and maintained that HE was his driver and was only doing him a favour. The applicant provided no explanation for the presence of Yu. Subjective circumstances 1. The applicant did not give evidence during the proceedings on sentence but a report from Laura Durkin, a psychologist, was tendered. It is from this report that the applicant's background is derived. 2. He was born in China on 8 September 1963 and was 51 years old at the time of the offence. All of his immediate family resided in China. The applicant described his upbringing as supportive and stable and reported a positive relationship with his parents. He moved to Australia permanently in 1991 despite a short period in 1995 when he resided in China. He became an Australian citizen in 2000. 3. The applicant completed his schooling and tertiary education in China and gained a degree similar to electrical engineering, working in the field of designing circuit boards. He worked as a computer salesman after relocating to Australia. The applicant started his own business in wholesale computers in 1997; however, he was made bankrupt when his business collapsed in 2000. For the next 8 years he worked in casual jobs, including as a taxi driver and brothel manager. He managed his own brothel between 2008 and 2013. Three months prior to his arrest he opened his own massage parlour. He was unsure what he would do for work upon his release from custody. 4. Ms Durkin reported that the applicant had financial worries and that he managed money poorly. He gambled frequently, especially when he was flush with funds, to the point where all the money would be gone. He accrued debts of $100,000 which were current at the time of his arrest. The applicant married twice; however, both marriages failed. He started smoking 'ice' in 2011 after the failure of his second marriage and due to the long hours at the brothel. His use escalated to the point where he consumed the equivalent of $500 per day, although he claimed to be able to abstain for lengthy periods of time. He said that his use was triggered by stress and financial concerns and that, in the three months prior to his arrest, he was using ice daily. Since entering custody he had abstained from ice and he said that he did not intend to resume use in the future. 5. The applicant said that at the time of the offences he viewed the sale of drugs as "normal business". Ms Durkin considered that this highlighted the uncritical nature of his thinking, the cognitive distortions he seemed to provide himself and the lack of consequential thinking he applied to his decisions. 6. The applicant told the psychologist that the motivation for the offences was purely financial as he was struggling to meet his basic financial obligations, let alone his substance use and gambling needs at the time. 7. Ms Durkin reported that it seemed that the applicant took responsibility for his actions and his substance dependence at the time had an adverse effect on his judgement and decision-making. 8. The applicant's criminal history disclosed a poor driving record which included driving whilst disqualified and driving whilst suspended. Other than driving offences, there were convictions for larceny (2002), goods in custody (2005) and possession of a prohibited drug (2011). For each of these offences, the applicant was convicted and fined. Remarks on sentence 1. As to count 1, the sentencing judge observed that the amount of the drug was just under one kilogram which was a very significant quantity within the ambit of the offence. As to count 2, his Honour noted that the amount of the drug, being 10 kilograms, was ten times the large commercial quantity which was "a very, very significant quantity of an extremely pernicious drug." (ROS 9.) 2. The sentencing judge said (ROS 9-10): "…The role of the [applicant] appears to have been as a facilitator. It was conceded by the Crown that [Wenping He] was the principal and that he directed the [applicant] in respect of his role in the offending. He was clearly above that of a mere courier or carrier. He conducted negotiations with the undercover operative, he handled and counted the moneys, the moneys being very significant amounts, in the millions of dollars. He delivered the drugs and the financial reward although he did not actually receive it that [sic] was promised in respect of the second transaction was said to be $100,000 [sic]. For the first transaction he was said to receive $10,000. He was however, as was submitted, exposed. He was the person who was conducting the various negotiations in the second transaction whilst the principal remained essentially out of view." [Emphasis added.] 1. As to a submission that the second purchase was essentially driven and encouraged by the UCO, his Honour said that the operation simply got the principal to disclose the stock that he had, which was an important aspect of keeping the drugs off the streets. His Honour considered that the issue of the drugs not ultimately being available for distribution was a very minor matter in mitigation. 2. The sentencing judge found that the applicant appeared to have low insight and had indicated "some issues in respect of remorse" (ROS 10). His plea of guilty entitled him to the full utilitarian discount of 25%. 3. His Honour described the applicant's prior criminal history as a largely irrelevant record given the seriousness of the offences, and the applicant was not disentitled to any significant degree of leniency because of that record. The sentencing judge said that the applicant appeared to be unsophisticated in terms of interpersonal skills. 4. Special circumstances were found, being the applicant's first time in prison, his need for rehabilitation and counselling upon release and "for continuing assistance in relation to the issues identified by the psychologist both in terms of gambling addiction, drug addiction and personality difficulties." (ROS 11.) 5. The sentencing judge observed that this was a very serious offence, that the distribution of methylamphetamine was a serious issue in the community and was a very corrosive drug. His Honour said there was a very significant need for general deterrence, a degree of need for specific deterrence and the other purposes of punishment, particularly denunciation, had been taken into account. 6. Before imposing an aggregate sentence, the sentencing judge said there had to be a degree of accumulation as the offences were separated by a significant period of time, although they involved a continuing course of conduct and were "part of the same criminal conduct, albeit continuing over two transactions and over a period of time" (ROS 11). Williams SC DCJ's remarks on sentence in relation to HE 1. As the focus of the appeal is the complaint of marked disparity with HE's sentence, it is necessary to refer to Judge Williams' sentencing remarks. 2. HE pleaded not guilty to four counts. Counts 1 and 3 were identical to the counts to which the applicant pleaded guilty. Count 4 concerned the supply of 296 grams of methylamphetamine on 13 November 2013 contrary to s25(2) DMT Act. Count 5 concerned the supply of 44 grams of pseudoephedrine on the same date contrary to s25(2) DMT Act. These prohibited drugs were found at HE's premises at Carlingford. An offence contrary to s25(2) DMT Act is punishable by 15 years imprisonment. There is no standard non-parole period. 3. After a 12 day trial, HE was found guilty of each count by the jury. 4. Judge McClintock's sentencing remarks were provided to Judge Williams during HE's proceedings on sentence. 5. Judge Williams accepted that HE was involved in the ongoing commercial supply of methylamphetamine. As to count 1, his Honour described HE as the principal in the supply and above both Li and the applicant in the hierarchy of the organisation. The judge found that HE sourced the drug as he delivered the package containing methylamphetamine to the applicant and it was only after HE's arrival that the delivery process progressed. HE received most of the proceeds of the supply. While Li and the applicant negotiated with the UCO, the further supply (count 3) did not take place until HE gave the go ahead. 6. The judge observed that HE was careful to ensure that he had possession of the package on 22 October 2013 for a very limited time and took steps designed to minimise detection of his role as well as deploying a telephone in full subscriber details. 7. As to count 3, the judge found that HE was the principal for four reasons: 1. HE was the source of the drugs as the drugs must have been located in his vehicle when it left his home. 2. HE took steps to limit his exposure as his wife drove to the area near the golf club and it was the last phase of the supply that involved HE driving the vehicle to complete the supply. 3. HE instructed Wang during negotiations with the UCO. 4. HE controlled the delivery of the package at the golf club. 1. The judge noted that the purity of the methylamphetamine in count 4 was comparatively low at 2.5%. His Honour assessed this offence to be slightly below mid-range. As to count 5, the judge observed that the pseudoephedrine was of a higher purity than commercially available in Australia and on prescription. His Honour accepted the Crown's submission that this offence was below mid-range. 2. HE's criminal record revealed an offence of common assault in 2001 dealt with by a s10 bond for 18 months and an offence of obtain money by deception in 2003 for which he was given a s9 bond. HE was also sentenced to 2 years 2 months imprisonment to be served by way of periodic detention after a trial in 2004 for an offence of demand money by force in company with intent to steal in 2002. 3. HE was 44 years old. The judge accepted that HE had reasonable prospects of rehabilitation due to his age, presentation, progress in prison and family's support. His Honour found special circumstances, being HE's prospects of rehabilitation and that his period in custody would be more difficult by reason of his apparent inability to communicate in English. 4. The judge said that an aggregate sentence would be imposed and the indicative sentences were: 1. Count 1: 8 years with a non-parole period of 5 years 2. Count 3: 13 years 6 months with a non-parole period of 8 years 3. Count 4: 2 years 4. Count 5: 1 year 1. Taking into account issues of totality, accumulation and the finding of special circumstances, an aggregate sentence of 16 years with a non-parole period of 10 years 6 months was imposed by Judge Williams. Ground of Appeal: The applicant has a justifiable sense of grievance by reason of a marked disparity between his sentence and the sentence imposed on the co-offender Wenping HE Submissions 1. The applicant made reference to the sentencing judge's acceptance of the Crown's position that HE was the principal who directed him in his role in the offending. The applicant pointed to his Honour's finding that his role was lower in the hierarchy than that of HE. Other findings that were significant included a 25% discount for the plea and a largely irrelevant criminal record. 2. The applicant referred to HE's sentence following guilty verdicts after trial. The findings made by Judge Williams included that HE was a principal in the supply on count 1, was above both the applicant and Li in the hierarchy of the organisation and, as to count 3, HE was again a principal who gave instructions to him. Other relevant findings were said to be HE's prior convictions and that the applicant was only dealt with on the equivalent of counts 1 and 3 faced by HE and not on counts 4 or 5. 3. HE's sentence was 16 years with a non-parole period of 10 years 6 months. The applicant pointed out that had HE received a discount of 25%, it would have resulted in a 'head' sentence of 12 years with a non-parole period of 7 years 10 ½ months. By contrast, the applicant's sentence was 12 years with a non-parole period of 8 years 6 months following his guilty plea. 4. The applicant argued that his sentence gave rise to a marked disparity with HE's sentence such as to create a justifiable sense of grievance. The Crown submitted that simple disparity was not enough, the difference must be excessive. Although Judge Williams did not sentence the applicant, the Crown said that the judge had specific regard to the approach taken by Judge McClintock. 5. The Crown contended that although the Crown had not appealed either the applicant's sentence or HE's sentence, they are both arguably lenient. The Crown's argument was that there was little to distinguish the applicant and HE with respect to their subjective cases, and given that the applicant is to spend 8 years 6 months in custody and HE is to spend 10 years 6 months in custody, this Court would not intervene. No lesser sentence, the Crown submitted, was warranted. Consideration 1. A marked disparity between the sentences imposed on co-offenders which gives rise to a justifiable sense of grievance is required before appellate intervention: Postiglione v R (1997) 189 CLR 295; [1997] HCA 26. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified: R v llbay [2000] NSWCCA 251; R v Kollas and Mitchell [2002] NSWCCA 491. The plurality (French CJ, Crennan, and Kiefel JJ) in Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 ("Green") said at [31]: "…The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (Footnotes omitted.) 1. Although HE's head sentence is 4 years longer than the applicant's and his mandatory period of custody exceeds the applicant's by 2 years, there are a number of factors which support the applicant's sense of grievance: 1. HE was the principal and the source of methylamphetamine in each of the supplies to the UCO. Whilst the applicant's role as a facilitator was significant, the applicant was subject to HE's instructions and lower in the hierarchy of the joint criminal enterprise to supply the prohibited drug; 2. unlike the applicant, HE's aggregate sentence included counts 4 and 5 which were offences contrary to s25(2) DMT Act; 3. the applicant's prior criminal history was regarded by the sentencing judge as largely irrelevant, whereas HE's record included an offence of demand money by force for which HE had been sentenced to 2 years 2 months imprisonment to be served by way of periodic detention; and 4. the applicant pleaded guilty in the Local Court whereas HE was found guilty by the jury after a 12 day trial. The applicant's sentence was discounted by 25% for the utilitarian value of the plea. 1. It is evident from Judge Williams' sentencing remarks that his Honour had regard to the sentence imposed upon the applicant and matters of difference in the respective cases of the two co-offenders when sentencing HE. However, in my respectful opinion, when attempting to obtain parity with the applicant's sentence, it appears that Judge Williams did not calculate what the hypothetical sentence would have been for HE if HE had pleaded guilty and his sentence had been reduced by 25% for the plea. HE's hypothetical sentence would have been 12 years with a non-parole period of 7 years 10 ½ months, whereas the applicant's sentence is 12 years with a non-parole period of 8 years 6 months. This hypothetical exercise demonstrates that the important matters of difference between the co-offenders (other than the plea) are not reflected in the sentence imposed upon HE. 2. The question remains whether the applicant's sentence should be reduced on account of disparity with his co-offender's sentence. This Court is not obliged to reduce the sentence to a level that would be regarded as erroneously lenient: Green at [33]. 3. Although he played a lesser role than HE, the applicant was the chief negotiator with the UCO, was paid $10,000 for the first transaction and was to be paid $100,000 in arranging the delivery of the 10 kilograms of methylamphetamine at the golf club. In my respectful opinion, the applicant's sentence was lenient, as was the sentence imposed upon HE. However, the leniency of the sentence is not so marked that to reduce it would amount to "an affront to the proper administration of justice": Green at [33]; R v Draper (unreported, Court of Criminal Appeal (NSW), 12 December 1986) at 5. In my opinion, the applicant has a justifiable sense of grievance and should be re-sentenced. Nevertheless, given the objective gravity of the applicant's offending and the statutory guideposts of the applicable maximum sentences and non-parole periods, the scope for reduction in the applicant's sentence is limited. 4. I make no change to the indicative sentences and I find special circumstances being the applicant's need for rehabilitation and counselling upon release. I propose that the aggregate sentence be reduced to 11 years 6 months with a non-parole period of 7 years 9 months. Any further reduction would result in a manifestly inadequate sentence. 5. Accordingly, I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. The aggregate sentence imposed by McClintock DCJ on 8 April 2015 is quashed. 4. The applicant is sentenced to an aggregate sentence of imprisonment of 11 years 6 months consisting of a non-parole period of 7 years 9 months commencing on 13 November 2013 and expiring on 12 August 2021 with a balance of term of 3 years 9 months commencing on 13 August 2021 and expiring on 12 May 2025. 5. The earliest date the applicant will be eligible to be released on parole is 12 August 2021. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2016