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Court of Criminal Appeal 19 May 2021

Li v R (Cth)

[2021] NSWCCA 100

Drugs
CRIMINAL LAW SENTENCE APPEAL INTENDED RATIO OF NON LEAVE TO APPEAL GRANTED NON

Citation: Li v R (Cth) [2021] NSWCCA 100
Court: Court of Criminal Appeal
Date: 19 May 2021
Judge(s): Hoeben CJ at CL at [1]; N Adams J at [61]; Hidden AJ at

Background

The applicant was the Australian-based importer in a scheme to bring 264.37kg of ephedrine and 118.3kg of methamphetamine into Australia, both quantities above the commercial threshold. An organiser based in China directed the operation, while two co-offenders travelled from Hong Kong to extract the concealed drugs and arrange domestic sales. The applicant coordinated freight logistics, leased storage facilities, and maintained direct contact with the overseas organiser.

In December 2018, the sentencing judge in the District Court imposed a total head sentence of 18 years and 2 months, with a single non-parole period (NPP) of 12 years. That NPP represented 66 per cent of the head sentence. The applicant's two co-offenders had been sentenced earlier: one (Wong) received an NPP equating to 62 per cent of his head sentence, and the other (Lau) received an NPP equating to approximately 66 per cent.

The applicant sought leave to appeal on the sole ground that the sentencing judge had expressed a clear intention to fix an NPP roughly equivalent to Wong's ratio of 62 per cent, but had in fact imposed an NPP closer to Lau's 66 per cent. The difference amounted to nine additional months before the applicant could be considered for parole.

Legal Issues

  • Whether the sentencing judge's stated intention was to fix an NPP equivalent to Wong's ratio (62 per cent) rather than Lau's ratio (66 per cent).
  • Whether the NPP as imposed gave effect to that stated intention or represented an inadvertent error.
  • Whether, if error was established, the Court was required to conduct a full resentencing exercise or could instead correct the error by varying the NPP.

Decision

The sentencing judge's intention regarding the NPP ratio

Hoeben CJ at CL concluded that the sentencing judge clearly intended to fix an NPP equivalent to that of Wong, not Lau. Throughout the sentencing remarks, comparisons between the applicant and Wong were consistent, while Lau was referenced only in general terms (at [53]). The sentencing judge's final observations on the NPP were unambiguous in expressing an intention to align the applicant's ratio with Wong's 62 per cent, and those words could not reasonably carry any other meaning (at [54]-[55]). N Adams J agreed, finding it clearly the sentencing judge's intention to impose a ratio "roughly" similar to Wong's rather than Lau's (at [61]).

Whether error was established

The NPP of 12 years constituted 66 per cent of the head sentence, aligning with Lau's ratio rather than Wong's. Nothing in the sentencing remarks indicated that the judge considered 66 per cent to be "roughly" equivalent to 62 per cent. The Court found that the sentencing judge's stated intention was not given effect when the NPP was fixed, and that the discrepancy was the result of an arithmetical miscalculation or inadvertence (at [57]).

Whether full resentencing was required

The Court held that full resentencing was not necessary. The error was characterised as arithmetical in nature, consistent with the example identified by Bathurst CJ in Lehn v R [2016] NSWCCA 255, where an arithmetical error of determinable extent does not require the appellate court to re-exercise the sentencing discretion afresh (at [65]-[66]). The NPP could instead be varied to reflect the sentencing judge's clear intention, following the approach in Voronov v Regina [2017] NSWCCA 241 (at [58]).

The Sigalla observation

N Adams J and Hidden AJ each noted, in response to an argument raised during the hearing, that the decision in Sigalla v R [2021] NSWCCA 22 should not be understood as signalling any departure from the established approach to resentencing under Kentwell v The Queen (2014) 252 CLR 601. The scope of the Court's role on resentencing remains as set out in Lehn v R, RO v R [2019] NSWCCA 183, and Mandranis v R [2021] NSWCCA 97 (at [70], [72]).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The non-parole period fixed on 12 December 2018 is varied to 11 years and 3 months, commencing 21 January 2016 and expiring 20 April 2027.

Key Takeaways

  • Where a sentencing judge's remarks clearly express an intention to set an NPP at a particular ratio relative to the head sentence, but the NPP as formally imposed reflects a different ratio, error is established if nothing in the remarks supports treating the two ratios as equivalent (at [53]-[57]).

  • An arithmetical error in applying the wrong NPP ratio is a discrete error that does not require the appellate court to exercise the sentencing discretion afresh; the NPP can be corrected by variation to reflect the sentencing judge's stated intention (at [58], [66]).

  • The Court of Criminal Appeal confirmed that the approach to resentencing set out in Lehn v R and Kentwell v The Queen remains settled law, and Sigalla v R does not represent a departure from it (at [70], [72]).

  • A ground of appeal alleging that a sentencing judge failed to give effect to a stated intention will succeed only where the Court is satisfied that the outcome actually imposed does not reflect what the judge intended, not merely that a different outcome was argued for by the parties (at [61]).

  • Nine months of additional pre-parole custody was treated as a significant difference warranting correction, particularly given the applicant's age and the corresponding effect on eligibility for release (at [34]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW) , s 44
- Criminal Appeal Act 1912 (NSW) , s 6

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R [2016] NSWCCA 255; (2016) 93 NSWLR 205
- Mandranis v R [2021] NSWCCA 97
- Qoro v R [2020] NSWCCA 276
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- RO v R [2019] NSWCCA 183
- Sigalla v R [2021] NSWCCA 22
- Tammer-Spence v R [2021] NSWCCA 90
- Voronov v Regina [2017] NSWCCA 241