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

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

The sentences imposed on Chen and He must be reduced for parity with co-offenders recently resentenced; the prior findings that financial gain was an aggravating factor were error in the absence of evidence showing gain greater than that inherent in the offence. Due to changes in co-offender sentences, the Applicants have a justified sense of grievance. The sentences are quashed and replaced with terms proportionate to those imposed on the co-offenders.

Parties
Applicant: Rong Chen; Applicant: Haihui He; Respondent: Regina
Jurisdiction
Australia
Judgment Date
21 May 2018
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeals allowed, sentences quashed and new sentences imposed for both applicants.
Legal Topics
Appeal Against Sentence, Drug Supply, Parity, Aggravating Factors, Manifest Excess
Criminal Law Appeal Against Sentence Drug Supply Parity Aggravating Factors Manifest Excess

Case Brief

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Parties

Rong Chen

Applicant

Haihui He

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether parity requires resentencing due to disparity with co-offenders
  2. 2 Whether financial gain was wrongly treated as an aggravating factor under s.21A(2)(o) Crimes (Sentencing Procedure) Act 1999
  3. 3 Whether the sentences are manifestly excessive

Ratio Decidendi

The sentences imposed on Chen and He must be reduced for parity with co-offenders recently resentenced; the prior findings that financial gain was an aggravating factor were error in the absence of evidence showing gain greater than that inherent in the offence. Due to changes in co-offender sentences, the Applicants have a justified sense of grievance. The sentences are quashed and replaced with terms proportionate to those imposed on the co-offenders.

Court Disposition

Appeals allowed, sentences quashed and new sentences imposed for both applicants.

Orders

  • Extension of time granted for Chen's Notice of Intention to Seek Leave to Appeal to 20 March 2018.
  • Leave to appeal against sentence granted for Chen and He.