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Court of Criminal Appeal 26 February 2014

Li v R

[2014] NSWCCA 341

Drugs
CRIMINAL LAW SENTENCE APPEAL PARITY OF SENTENCING

Citation: Li v R [2014] NSWCCA 341
Court: NSW Court of Criminal Appeal
Date: 26 February 2014
Judges: Hoeben CJ at CL, Schmidt J, Barr AJ

Background

The applicant pleaded guilty in the NSW District Court to knowingly taking part in the supply of MDP2P (3,4-Methylenedioxy-phenyl-2-propanone), a chemical precursor used to manufacture MDMA. The quantity involved was approximately 2,217 kilograms, far exceeding the large commercial threshold for that drug. The offending centred on a factory unit in Castle Hill where the drug was stored, and events in Geelong where the applicant and a co-offender were found near a van containing a further 385 kilograms.

At the time of sentencing, the applicant was already serving a Victorian sentence for trafficking in a drug of dependence in a commercial quantity. The sentencing judge set the NSW sentence to commence two years and three months after the start of the Victorian sentence, resulting in an aggregate sentence of 21 years and nine months, with a non-parole period of 14 years and six months.

A co-offender, Koh, had been sentenced for the same NSW offence by the same judge. His sentence was set to commence two years after his Victorian sentence began, producing an aggregate of 13 years and ten months with a non-parole period of 11 years and ten months. Koh had separately sought to appeal his own sentence, and the Court of Criminal Appeal had already refused that application on the basis that his grounds lacked merit.

  • Whether the sentencing judge adequately determined the applicant's role within the drug syndicate relative to the co-offender Koh
  • Whether the applicant had a justifiable sense of grievance arising from a disparity between his sentence and Koh's sentence (the parity principle)
  • Whether the sentencing judge erred in applying the totality principle when accumulating the NSW sentence on top of the Victorian sentence

Decision

On the first ground, the Court found no error in the sentencing judge's treatment of the applicant's role. The judge had expressly considered competing submissions about whether the applicant was merely a translator and driver, or occupied a higher position in the syndicate hierarchy. The judge concluded that the evidence did not support the lower characterisation, and the Court of Criminal Appeal found no basis to disturb that finding.

On parity, the Court noted that the applicant's aggregate sentence exceeded Koh's by two years and one month. The Court found this differential was justified. The sentencing judge's intention was to preserve a distinction already drawn by the Victorian Court, which had sentenced the applicant to a longer term than Koh following the Geelong events. The Court concluded that the applicant had no justifiable sense of grievance: the disparity reflected a deliberate and principled sentencing choice that did justice to both offenders.

On totality, the applicant argued that the NSW and Victorian offences formed a single course of criminal conduct and that an aggregate of 19 years and six months would have been sufficient. The Court rejected this characterisation. It found that the events in Victoria could not be described merely as a local movement of drug stock; rather, they represented a significant step in interstate drug distribution. The NSW offence at Castle Hill did not comprehend or reflect the separate criminality of the Victorian conduct. The degree of accumulation fell comfortably within the sentencing judge's discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge dealing with a co-offender may preserve distinctions already drawn by a court in another jurisdiction, and that doing so does not constitute a parity error.
  • A justifiable sense of grievance does not arise simply because one co-offender receives a longer aggregate sentence; what matters is whether the differential is explicable on legitimate sentencing grounds.
  • Where two offences arising in different states involve related drug conduct, they do not automatically form a single course of criminality for totality purposes. The Court found that distinct interstate distribution steps can warrant separate and partially accumulated sentences.
  • In dismissing the appeal, the Court emphasised that the degree of accumulation imposed fell within the range of the sentencing judge's proper discretion, and mere submission that a lower total was sufficient does not establish error.
  • No error was established in the sentencing judge's assessment of the applicant's role within the syndicate, even where competing factual submissions were advanced about relative levels of involvement between co-offenders.

Legislation and Cases Referenced

Cases:
- Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 211 A Crim R 147
- Tyler and Chalmers v R [2007] NSWCCA 247; (2007) 173 A Crim R 458
- Koh (application for extension of time, refused 14 October 2013, NSW Court of Criminal Appeal)

Legislation: No specific legislation was cited in the material provided.