Chen v R; He v R [2018] NSWCCA 95

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chen v R; He v R [2018] NSWCCA 95 Hearing dates: 11 May 2018 Date of orders: 21 May 2018 Decision date: 21 May 2018 Before: White JA at [1] Johnson J at [2] Harrison J at [67] Decision: Applicant Chen: (a) extend time for the filing of a Notice of Intention to Seek Leave to Appeal to 20 March 2018; (b) grant leave to appeal against sentence; (c) quash the sentence imposed in the Sydney District Court on 17 June 2016 for the offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug and, in its place, sentence Mr Chen to imprisonment for a term of five years and three months, comprising a non-parole period of three years and nine months commencing on 20 May 2014 and expiring on 19 February 2018 with a balance of term of one year and six months commencing on 20 February 2018 and expiring on 19 August 2019; (d) note that Mr Chen is eligible for release to parole although it appears that, upon release from custody (and subject to decisions by the State Parole Authority and the Commonwealth Department of Home Affairs), he will be held in immigration detention pending his deportation from Australia.

Applicant He: (a) grant leave to appeal against sentence; (b) quash the sentence imposed at the Sydney District Court on 25 August 2016 for the offence of supplying not less than the large commercial quantity of a prohibited drug and, in lieu thereof, taking into account the offence of possession of a prohibited drug on the Form 1, sentence Mr He to a term of imprisonment for six years and nine months comprising a non-parole period of four years and eight months commencing on 20 May 2014 and expiring on 19 January 2019 with a balance of term of two years and one month commencing on 20 January 2019 and expiring on 19 February 2021; (c) note that Mr He will be eligible for release on parole on 20 January 2019. Catchwords: CRIMINAL LAW – appeal against sentence – large commercial drug supply - co-offenders resentenced by Court of Criminal Appeal after successful appeals – parity issue arising from resentencing of co-offenders - Crown concedes parity ground established - error in approach to financial gain as aggravating factor - applicants resentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Huang v R [2017] NSWCCA 312 Jones v The Queen (1993) 67 ALJR 376 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lin v R [2018] NSWCCA 13 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Texts Cited: --- Category: Principal judgment Parties: Rong Chen (Applicant) Haihui He (Applicant) Regina (Respondent) Representation: Counsel: Mr FD Coyne (Applicant Chen) Mr MC Ramage QC (Applicant He) Mr B Hatfield (Respondent)