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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: NSW Court of Criminal Appeal
Date: 19 May 2021
Judge(s): Hoeben CJ at CL; N Adams J; Hidden AJ

Background

The applicant was the Australian-based importer in a large-scale drug importation scheme. Three shipping containers arrived in Sydney in January 2016 concealing 118.3 kg of pure methamphetamine and 264.37 kg of pure ephedrine, both above the commercial quantity threshold. The applicant coordinated delivery, storage, and handling of the consignments on behalf of an overseas organiser based in China.

The applicant was arrested on 21 January 2016 and was aged 60 at the time of sentencing in December 2018. She pleaded guilty to two counts of attempted importation of border-controlled substances. Two co-offenders, who had travelled from Hong Kong to extract the drugs and arrange domestic sales, were sentenced earlier by a different judge.

The sentencing judge imposed an effective head sentence of 18 years and 2 months, with a single non-parole period (NPP) of 12 years, representing 66 per cent of the head sentence. The applicant sought leave to appeal, arguing the NPP did not correctly reflect the sentencing judge's expressed intention.

  • Whether the sentencing judge's expressed intention regarding the ratio of the NPP to the head sentence was correctly implemented in the orders as made
  • Whether the NPP, as set, produced a ratio inconsistent with the ratio the judge described by reference to the co-offender Wong's sentence
  • Whether the identified error warranted a grant of leave to appeal and a re-exercise of the sentencing discretion

Decision

The sentencing judge had described the intended NPP by reference to the ratio applied to co-offender Wong, whose NPP was 62 per cent of his effective head sentence. However, the NPP as imposed on the applicant (12 years) amounted to 66 per cent of her head sentence, not 62 per cent. The Court found this inconsistency demonstrated that the judge's stated intention was not correctly translated into the orders made.

The Court granted leave to appeal on this basis. Hidden AJ characterised the error as a mathematical one of the kind contemplated in Lehn v R, while Hoeben CJ at CL and N Adams J agreed that the error justified intervention. The Court adjusted the NPP to align with the sentencing judge's expressed intention, rather than conducting a full re-sentencing exercise, as both parties agreed that a fresh exercise of the sentencing discretion was unnecessary.

The Court also addressed a question arising from Sigalla v R [2021] NSWCCA 22 about whether that decision signalled a departure from the High Court's approach in Kentwell v The Queen. Hoeben CJ at CL, N Adams J, and Hidden AJ each confirmed that Sigalla did not propose any new or different approach and that the established framework for re-sentencing on appeal, as set out in Kentwell and in cases such as Lehn v R and RO v R, remains unchanged.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where a sentencing judge expresses an intention regarding the ratio of an NPP to the head sentence by reference to a co-offender's sentence, but the orders as made produce a different ratio, that inconsistency constitutes an error warranting appellate intervention.
  • Hidden AJ characterised this type of NPP miscalculation as a mathematical error within the meaning discussed by Bathurst CJ in Lehn v R, providing a further analytical basis for correction without full re-sentencing.
  • The Court of Criminal Appeal confirmed that Sigalla v R [2021] NSWCCA 22 does not depart from, or modify, the High Court's approach in Kentwell v The Queen (2014) 252 CLR 601: once a House v The King error is established, the appellate court must exercise the discretion afresh.
  • Agreement between the parties that re-exercise of the sentencing discretion was unnecessary allowed the Court to confine its intervention to correcting the NPP calculation, without disturbing the head sentence.
  • The established framework for appellate re-sentencing in NSW criminal matters remains as set out in Kentwell, Lehn v R, RO v R, and Mandranis v R.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), including s 19AB
- Criminal Code Act 1995 (Cth), ss 307.1, 307.11
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 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