Citation: Li v Attorney General for New South Wales [2018] NSWSC 674
Court: Supreme Court of New South Wales
Date: 28 May 2018
Judge(s): Harrison J
Background
The applicant pleaded guilty in the District Court to knowingly taking part in the supply of MDP2P (a prohibited drug precursor) in a quantity of over 2,272 kg, which was not less than the large commercial quantity for that drug. He was sentenced in August 2012 to 19 years and 6 months imprisonment with a non-parole period of 12 years and 3 months. Because the applicant was already serving a sentence in Victoria for a related trafficking offence, the District Court ordered the NSW sentence to begin some two years and three months after the Victorian sentence commenced, producing an aggregate sentence of 21 years and 9 months with a non-parole period of 14 years and 6 months.
The applicant's co-offender received an aggregate sentence of 18 years and 6 months. The difference largely reflected the co-offender's earlier and more favourable guilty plea, which attracted a 25 per cent discount compared to the applicant's 10 per cent discount. The applicant sought leave to appeal his sentence to the Court of Criminal Appeal on three grounds: that the sentencing judge had erred in assessing objective seriousness, and in applying the parity and totality principles. The Court of Criminal Appeal granted leave but dismissed the appeal in 2014.
The applicant then brought this application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking to have the Supreme Court direct a further inquiry into his sentence or refer the matter to the Court of Criminal Appeal.
Legal Issues
- Whether the application raised the appearance of a doubt or question as to any mitigating circumstances in the case, so as to enliven the Court's power under s 79(1) of the Crimes (Appeal and Review) Act 2001 to direct an inquiry or refer the matter to the Court of Criminal Appeal.
- Whether the disparity between the applicant's sentence and that of his co-offender gave rise to such an appearance of doubt or question.
Decision
Harrison J explained that the power to direct a sentence inquiry under s 79(1) of the Crimes (Appeal and Review) Act 2001 is only available where it appears there is a doubt or question as to the convicted person's guilt, any mitigating circumstances in the case, or any part of the evidence. Even where that threshold is met, the Court retains a discretion to decline to direct an inquiry. The Court may also refuse to consider the application where the matter has already been fully addressed in the original proceedings or on appeal.
Harrison J found that the difference in sentences between the applicant and his co-offender was adequately explained by legitimate sentencing factors. The co-offender received a larger guilty plea discount, pleaded earlier, and the two Victorian sentences had also been affected by differing timing of pleas. Prior to applying any plea discount, the applicant's starting point was actually slightly lower than the co-offender's, reflecting the sentencing judge's finding that their respective roles, while not identical, were not substantially different.
Harrison J noted that the Court of Criminal Appeal had already considered and rejected the parity and totality arguments on appeal. Nothing in the present application identified any appearance of error by the sentencing judge or any other basis from which a doubt or question as to mitigating circumstances could arise. Accordingly, the statutory precondition was not satisfied and the Court's power to direct an inquiry was not enlivened.
Orders Made
- The application was dismissed.
Key Takeaways
- Under s 79(1) of the Crimes (Appeal and Review) Act 2001, the Supreme Court may only direct a sentence inquiry where it appears there is a doubt or question as to the convicted person's guilt, mitigating circumstances, or part of the evidence. This is a threshold condition, not a merits review.
- A sentence disparity between co-offenders does not automatically give rise to an appearance of doubt as to mitigating circumstances where the difference is explicable by legitimate sentencing factors, such as differing guilty plea discounts.
- Where the Court of Criminal Appeal has already considered and rejected the same grounds on a sentence appeal, the s 78 application process does not operate as a further avenue to re-agitate those arguments without fresh grounds.
- In dismissing the application, Harrison J confirmed that the sentencing judge was entitled to treat the two offenders differently given the concrete differences in their plea timing and resulting discounts, even where their objective roles in the offending were broadly comparable.
- No error was established in the sentencing judge's approach to parity or totality, and the aggregate sentence fell within the proper exercise of sentencing discretion as confirmed by the Court of Criminal Appeal.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases:
- Li v R [2014] NSWCCA 341
- Koh v R [2013] NSWCCA 287
- Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4
- Duncan, Paul Parepano [2014] NSWSC 847
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2004] HCA 28
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Milat, Ivan Robert Marko [2015] NSWSC 209
- Mulato v R [2006] NSWCCA 282
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Varley v Attorney General of New South Wales (1987) 8 NSWLR 30