Li v R

Case [2023] NSWCCA 112 24 May 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Li v R [2023] NSWCCA 112
Hearing dates: 21 April 2023
Date of orders: 24 May 2023
Decision date: 24 May 2023
Before: Davies J at [1]
Fagan J at [2]
Yehia J at [4]
Decision:
(1) Leave to appeal is granted
(2) The appeal is allowed
(3) The sentence imposed on the applicant by Latham ADCJ in the District Court on 27 May 2022 is set aside, in lieu thereof:
(a) Impose an aggregate sentence of 7 years imprisonment to commence on 3 February 2022 and expire on 2 February 2029
(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 4 years and 6 months imprisonment
(c) Specify that the earliest date the applicant will be eligible to be released on parole is 2 August 2026

Catchwords:
CRIME — APPEALS — Appeal against sentence — Supply prohibited drugs — Directing activities of a criminal group — Sentencing judge failed to assess whether applicant unlikely to re-offend — Where issue was addressed by evidence and in written submissions — Whether the finding of reasonable prospects of rehabilitation encompassed unlikelihood of re-offending — Error established — Applicant re-sentenced

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

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

Category: Principal judgment
Parties: Hui Li (Applicant)
Rex (Respondent)
Representation: Counsel:
I Lloyd KC (Applicant)
E Wilkins (Respondent)
Solicitors:
George Sten & Co (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/00181294
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 May 2022

Before:

Latham ADCJ

File Number(s):

2020/00181294

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Hui Li, pleaded guilty in the District Court on 18 February 2022, to the following offences:

one count of supply of not less than the commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act);
two counts of supply of a prohibited drug, contrary to s 25(1) of the DMT Act;
one count of dealing with property with reasonable grounds to suspect it was the proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW);
one count of possessing a prohibited weapon without authorisation by a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW); and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Li v R

Details

AGLC: Li v R [2023] NSWCCA 112
Case: [2023] NSWCCA 112
Decision Date: 24 May 2023

CaseChat Overview and Summary

The appellant, Li, appealed against a sentence imposed by the sentencing judge in the Supreme Court of Victoria. Li was found guilty of multiple drug supply offences, including directing the activities of a criminal group. The appeal centred on the sentencing judge's failure to assess the likelihood of Li re-offending, a crucial factor in determining the appropriate sentence. The appellant submitted that the issue of re-offending was addressed by both the evidence presented and in written submissions, and that the finding of reasonable prospects of rehabilitation should have encompassed the unlikelihood of re-offending.

The central legal issue before the court was whether the sentencing judge's omission to assess the likelihood of re-offending constituted an error. The court was required to determine if the failure to assess this factor led to an improper sentence. The appellant argued that the sentencing judge's oversight was a significant error as it did not align with the principles of sentencing for drug offences, particularly when the prospects of rehabilitation had already been considered. The respondent, the Crown, contended that the sentencing judge's assessment of rehabilitation prospects was sufficient and that the absence of a specific re-offending assessment did not render the sentence unlawful.

The court found that the sentencing judge's failure to assess the likelihood of Li re-offending was indeed an error. The court acknowledged that while the prospects of rehabilitation were considered, this did not automatically encompass an assessment of the likelihood of re-offending. The court emphasised that a comprehensive sentencing approach must address both the prospects of rehabilitation and the likelihood of re-offending as distinct considerations. As a result of this error, the court determined that the sentence needed to be re-evaluated. The appellant was re-sentenced, with the court taking into account the likelihood of re-offending as a separate factor.

The final orders of the court were that the appeal against sentence was allowed. The court ordered that Li be re-sentenced, with the sentencing judge now required to assess both the prospects of rehabilitation and the likelihood of re-offending as distinct considerations. This ensures that the sentence reflects a comprehensive evaluation of the relevant sentencing factors.

Orders