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Court of Criminal Appeal 19 December 2014

R v Li

[2014] NSWCCA 327

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE CONSPIRACY TO SUPPLY PROHIBITED DRUG

Citation: R v Li [2014] NSWCCA 327
Court: NSW Court of Criminal Appeal
Date: 19 December 2014
Judges: Fullerton J (primary reasons); R A Hulme J; Garling J

Background

The respondent, a Hong Kong national, was recruited by an overseas criminal organisation to travel to Sydney and act as a drug courier and supplier. Shortly after arriving in October 2012, he stored approximately 25 kilograms of methylamphetamine (with an estimated street value of $5 million) in a residential apartment he had leased in his own name. He was arrested at Sydney Airport while apparently attempting to leave Australia.

The respondent pleaded guilty in the District Court to one count of knowingly taking part in the supply of a prohibited drug (24.97 kilograms of methylamphetamine, well above the large commercial quantity threshold of 1 kilogram) and one count of conspiring to supply 5 kilograms of methylamphetamine. A charge of knowingly dealing with the proceeds of crime, involving deposits of over $400,000 into bank accounts, was taken into account on a Form 1.

The District Court sentenced the respondent to 9 years imprisonment with a non-parole period of 4 years and 6 months on the supply count (after a 15 per cent guilty plea discount), with a concurrent term of 6 years for the conspiracy count. The Director of Public Prosecutions appealed, arguing both the head sentences and the non-parole periods were manifestly inadequate.

  • Whether the total sentences imposed were manifestly inadequate for offences involving large commercial quantities of methylamphetamine.
  • Whether the non-parole periods were manifestly inadequate, having regard to the nature and scale of the offending.
  • Whether the sentencing judge had correctly characterised the respondent's role in the criminal enterprise.

Decision

The Court of Criminal Appeal unanimously found the sentences manifestly inadequate. Fullerton J identified several compounding errors in the District Court's approach. Most significantly, the sentencing judge had characterised the respondent as merely a "courier," which the Court of Criminal Appeal regarded as a demonstrably incorrect assessment. The respondent's role was more substantial: he had been recruited into a trusted position within a four-tiered drug syndicate, had stored nearly 25 kilograms of methylamphetamine in premises he leased in his own name, and had also handled large sums of cash connected to the proceeds of the criminal activity.

The Court preserved several favourable findings made at first instance. These included the finding that the respondent had decided to withdraw from the syndicate before his arrest, and that his subjective circumstances warranted some leniency. The Court also accepted the 15 per cent discount for the guilty plea and the concurrent structure of the sentences. However, it declined to find special circumstances justifying a reduction in the proportion of the non-parole period.

Fullerton J acknowledged that the resentencing produced what she described as a "modest result," given the constraints imposed by the Crown's position on appeal and the need to preserve certain findings from the original sentencing. The Court emphasised the serious objective gravity of the offending, particularly the quantity of drugs involved and the organised criminal context, and imposed substantially higher sentences and non-parole periods. Hulme J and Garling J both agreed with Fullerton J's reasons and proposed orders without elaboration beyond confirming the inadequacy of the original sentences.

Orders Made

  • Appeal allowed.
  • Sentences imposed in the District Court on 12 June 2014 quashed.
  • For the supply count: imprisonment for 10 years, with a non-parole period of 7 years and 6 months commencing 30 October 2012, expiring 29 April 2020; balance of term of 2 years and 6 months expiring 29 October 2022.
  • For the conspiracy count: imprisonment for 7 years, with a non-parole period of 4 years and 4 months commencing 30 October 2012, expiring 29 February 2017; balance of term of 2 years and 8 months expiring 29 October 2019; both terms to be served wholly concurrently.

Key Takeaways

  • Characterising an offender's role in a drug syndicate requires close attention to the agreed facts. The Court of Criminal Appeal found that describing the respondent as a "courier" was demonstrably erroneous where the agreed facts showed a trusted, multi-faceted role involving storage of large drug quantities and handling of proceeds.
  • A non-parole period of 4 years and 6 months for a supply offence involving nearly 25 times the large commercial quantity of methylamphetamine was held to be manifestly inadequate, even after accounting for a guilty plea discount and mitigating subjective circumstances.
  • Where a Crown appeal proceeds on a limited basis, the Court of Criminal Appeal may be constrained to a "modest result" on resentencing, even where it regards the original sentences as seriously deficient. Fullerton J noted this expressly in her reasons.
  • The existence of favourable subjective findings, including an apparent decision to withdraw from the criminal enterprise before arrest, does not prevent a finding that sentences are manifestly inadequate when the objective seriousness of the offending is significant.
  • Under s 5D of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions may appeal a sentence as manifestly inadequate; both the head sentence and the non-parole period are amenable to challenge on this ground.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 26
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1)(n), 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Bugmy v The Queen [2013] HCA 27; 249 CLR 571
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Booth [2014] NSWCCA 156
- R v DW [2012] NSWCCA 66; 221 A Crim R 63
- R v RD [2014] NSWCCA 103
- R v Robinson [2014] NSWCCA 12