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Court of Criminal Appeal 24 May 2023

Li v R

[2023] NSWCCA 112

DrugsFraud & dishonesty
SENTENCED

Citation: Li v R [2023] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 24 May 2023
Judges: Davies J, Fagan J, Yehia J (Yehia J delivering the leading judgment)

Background

The applicant pleaded guilty in the District Court to six offences arising from a drug supply operation she led in the Hurstville area in May and June 2020. The offences included supplying a commercial quantity of methylamphetamine (351.32 grams), two further drug supply counts, dealing with suspected proceeds of crime totalling $240,750, possessing a working taser without a permit, and knowingly directing a criminal group. The applicant was the principal of the enterprise, which she ran partly through a makeshift brothel, with three co-offenders assisting in drug sales, storage, and money management.

The District Court sentenced the applicant to an aggregate term of 7 years imprisonment, with a non-parole period of 5 years, applying a 10% discount for her early guilty plea. The sentencing judge found that the applicant had "reasonable prospects of rehabilitation" but did not make a specific finding on whether she was unlikely to re-offend, despite evidence and written submissions having been directed to that distinct question.

The applicant sought leave to appeal on the single ground that the sentencing judge erred by failing to consider and give effect to the statutory mitigating factor of unlikelihood of re-offending under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing judge erred by failing to make a distinct finding on the applicant's unlikelihood of re-offending under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), separately from her finding on prospects of rehabilitation under s 21A(3)(h).
  • Whether a finding of "reasonable prospects of rehabilitation" could be taken to encompass, and therefore satisfy, the requirement to consider unlikelihood of re-offending.
  • What consequences flowed from the established error, including whether re-sentencing was required and what sentence was appropriate.

Decision

The Court of Criminal Appeal upheld the ground of appeal. The Court confirmed that, while the considerations of remorse, rehabilitation, and unlikelihood of re-offending are interconnected and may share common evidentiary foundations, they remain distinct statutory factors. A sentencing judge's reasons must make it evident that each relevant factor has been separately taken into account, particularly where evidence and submissions have been specifically directed to a particular factor.

The sentencing judge had made a finding of reasonable prospects of rehabilitation but had not expressly addressed the question of whether the applicant was unlikely to re-offend. Because this issue had been squarely raised by evidence and in written submissions, the omission constituted a reviewable error. The Crown did not contest that the applicant was unlikely to re-offend, and Fagan J observed that the sentencing judge probably had regard to the relevant evidence but simply did not make an explicit finding. That omission was nonetheless an error: the applicant was entitled to a finding on the matter and to have it expressly taken into account.

Because the Court was required to re-sentence the applicant from scratch, it also had regard to additional material not available at first instance, specifically evidence of the ongoing emotional and psychological distress caused by the applicant's near-total separation from her 12-year-old son since sentencing. The Court found this hardship constituted special circumstances warranting a greater variation to the statutory ratio between the head sentence and the non-parole period. The aggregate head sentence of 7 years was maintained as appropriate to the applicant's criminality, but the non-parole period was reduced by six months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence set aside.
  • Aggregate sentence of 7 years imprisonment imposed, commencing 3 February 2022 and expiring 2 February 2029.
  • Non-parole period of 4 years and 6 months imposed (reduced from 5 years), pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Earliest parole eligibility date specified as 2 August 2026.

Key Takeaways

  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), unlikelihood of re-offending (s 21A(3)(g)) and prospects of rehabilitation (s 21A(3)(h)) are distinct mitigating factors that must each be addressed in a sentencing judge's reasons, even where they share overlapping evidentiary foundations.
  • A finding of "reasonable prospects of rehabilitation" does not automatically satisfy the obligation to consider and make a finding on unlikelihood of re-offending.
  • The obligation to address each factor expressly is heightened where evidence has been adduced and submissions made specifically directed to that factor. Failing to do so in those circumstances constitutes an error that enlivens appellate intervention.
  • In allowing the appeal and re-sentencing, the Court of Criminal Appeal confirmed that it must itself make findings on all relevant matters, including those omitted at first instance, and may take into account evidence arising after the original sentence was imposed.
  • The aggregate head sentence remained unchanged, reflecting that the extent of the applicant's criminality was properly captured by the original term. The reduction was confined to the non-parole period, reflecting special circumstances arising from ongoing hardship in custody.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 21A(2), 21A(3)(g), 21A(3)(h), 44(2A), 53A(2)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), ss 93T(4A), 193C(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Baker v R [2022] NSWCCA 195 (distinguished)
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (applied)
- Meoli v R [2021] NSWCCA 213 (considered)
- TL v R [2020] NSWCCA 265 (considered)
- Zuffo v R [2017] NSWCCA 187 (considered)