AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 13 February 2020

R v Li

[2020] NSWSC 59

Drugs
CRIMINAL LAW OFFENDER WHETHER ERRONEOUS DISPARITY IN OUTCOME APPLICATION DISMISSED

Citation: R v Li [2020] NSWSC 59
Court: Supreme Court of New South Wales
Date: 13 February 2020
Judge: Button J

Background

The applicant was convicted of knowingly taking part in the supply of a large commercial quantity of a prohibited drug, contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The offence involved over 2,200 kilograms of MDP2P (a precursor to MDMA) found stored at a factory unit in Castle Hill, Sydney. He was sentenced in the District Court on 10 August 2012 and had earlier been sentenced in Victoria for related offending involving a separate quantity of the same substance.

The applicant and a co-offender had operated as part of a joint criminal enterprise spanning both states. The co-offender was sentenced by the same District Court judge in New South Wales in June 2011, receiving a head sentence of 16 years 6 months. The applicant received a head sentence of 18 years 6 months. Both sentences were expressed to commence two years after the commencement of their respective Victorian sentences.

The applicant, who appeared to have prepared the application without legal assistance, sought a review of his New South Wales sentence under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). He argued that the sentencing judge had incorrectly found his role was greater than the co-offender's, pointing in particular to findings made in the Victorian sentencing proceedings that had treated the two men's roles as equivalent.

  • Whether the sentencing judge in New South Wales erred by finding the applicant's role in the joint criminal enterprise was somewhat greater than the co-offender's, given that the Victorian sentencing judge had found their roles equivalent.
  • Whether the different sentences imposed on the applicant and co-offender in New South Wales gave rise to an erroneous sentencing disparity.
  • Whether any appearance of doubt or question as to mitigating circumstances existed sufficient to warrant a referral to the Court of Criminal Appeal or an order for inquiry under s 79 of the Crimes (Appeal and Review) Act 2001 (NSW).

Decision

Button J applied the threshold test under s 79(2) of the Act, which requires the court to identify an appearance of doubt or question as to the convicted person's guilt or any mitigating circumstances. His Honour found that none of the applicant's three principal propositions satisfied that test.

The applicant's first proposition was that the agreed facts placed before the New South Wales sentencing judge did not support the finding that his role was greater than the co-offender's. Button J rejected this, finding that the agreed facts clearly supported the conclusion that the applicant had performed a comparatively greater role. Those facts showed, among other things, that the applicant activated and controlled a phone central to the enterprise before the co-offender even arrived in Australia, personally made all relevant inquiries about the storage premises, paid the rental and registration fees, collected the key to the storage unit, and was in possession of it at the time of arrest.

The second proposition was that the Victorian sentencing judge's finding of equivalent roles was inconsistent with, and undermined, the New South Wales judge's contrary finding. Button J rejected this entirely. The Victorian and New South Wales proceedings concerned different offences, different facts, different concessions, different prosecuting authorities, and different judges. The Victorian offence related to the quantity of the precursor detected in Geelong; the New South Wales offence related to a separate and much larger quantity found in Castle Hill. The favourable finding of equivalent roles in Victoria was therefore held to be legally irrelevant to the New South Wales finding.

The third proposition, which depended on the success of the first two, also failed. Button J further noted that a general ground of erroneous disparity had already been argued and rejected by the Court of Criminal Appeal approximately seven years earlier. Reflecting independently on the two New South Wales sentences, his Honour detected no erroneous disparity. The application was dismissed.

Orders Made

  • The application for review of the sentence imposed on 10 August 2012 in the District Court of New South Wales was dismissed.

Key Takeaways

  • Under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), the statutory threshold for a sentence review requires the court to identify an appearance of doubt or question as to the convicted person's guilt or mitigating circumstances; dissatisfaction with the outcome is not sufficient.
  • Favourable sentencing findings made in one jurisdiction, concerning a different offence on different facts, do not bind or constrain a sentencing court in another jurisdiction dealing with a separate offence arising from the same broader enterprise.
  • No erroneous disparity was established between the applicant and his co-offender, where the agreed facts before the sentencing judge supported a finding that the applicant had played a comparatively greater role in the New South Wales offending.
  • Prior appellate rejection of a related disparity ground in the Court of Criminal Appeal was a relevant consideration reinforcing the dismissal of the Part 7 application.
  • A self-represented applicant's access to the Part 7 review mechanism does not alter the applicable legal test, which requires more than a detailed restatement of submissions previously put and rejected.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), particularly ss 79(1) and 79(2)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Koh v R [2013] NSWCCA 287
- Li v R [2014] NSWCCA 18
- Li v Attorney General for New South Wales [2018] NSWSC 674
- Li v Attorney General for New South Wales [2019] NSWCA 95
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Varley v Attorney-General (NSW) (1987) 8 NSWLR 30