Legal Research
Cases
Li v R (Cth)

Li v R (Cth)

Case [2021] NSWCCA 100 19 May 2021

Criminal Liability

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Li v R (Cth) [2021] NSWCCA 100
Hearing dates: 26 April 2021
Decision date: 19 May 2021
Before: Hoeben CJ at CL at [1];
N Adams J at [61];
Hidden AJ at [73]
Decision:
(1)   Leave to appeal is granted.
(2)   Appeal allowed.
(3)   The non-parole period fixed on 12 December 2018 in respect of the sentence imposed in the District Court on the applicant is varied to a non-parole period of 11 years and 3 months, commencing 21 January 2016 and expiring 20 April 2027.

Catchwords:
CRIMINAL LAW – sentence appeal – attempted importation of methamphetamine and ephedrine above the commercial quantity – intended ratio of non-parole period to head sentence described by reference to that applying to another offender – whether sentencing judge’s intention correctly expressed – leave to appeal granted – non-parole period adjusted to fit with sentencing judge’s expressed intention.

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

Cases Cited:
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

Category: Principal judgment
Parties: Ning Ling Li – Applicant
Regina (Cth) - Respondent
Representation:
Counsel:
C McGorey – Applicant
AN Williams – Respondent
Solicitors:
Lee Ting – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s): 2016/197000
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 December 2018

Before:

Norrish QC DCJ

File Number(s):

2016/197000

JUDGMENT

HOEBEN CJ at CL:

Offence and sentence

The applicant has applied under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) for leave to appeal the sentence imposed on her by Norrish QC DCJ on 12 December 2018.

The applicant engaged in the attempted importation of 264.37kg of ephedrine and 118.3kg of methamphetamine (both above the commercial quantity threshold). A “Mr Lee” (Lee), also known as Ah Cheng or Ah Qiang, based in China, was the “boss or overall organiser of the operation”. The applicant was found to be the Australian based importer. Her co-offenders, Evan Kung Han Wong (Wong) and Chi Wai Lau (Lau), travelled from Hong Kong to Australia to extract the secreted drugs and line up sales to domestic purchasers.
The applicant entered custody upon her arrest on 21 January 2016. She was then aged 57. She was aged 60 at the time of sentencing.
On 12 December 2018, Norrish QC DCJ sentenced the applicant as follows:

Offence	*Criminal Code Act* 1995 (Cth)	Offence date	Sentence	Commences
Attempted import of a commercial…

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 (Cth)

Details

AGLC: Li v R (Cth) [2021] NSWCCA 100
Case: [2021] NSWCCA 100
Decision Date: 19 May 2021

CaseChat Overview and Summary

Li brought an appeal against the sentence imposed by the Court of Appeal of the Supreme Court of the Northern Territory for offences of attempted importation of a commercial quantity of methamphetamine and ephedrine. The appeal was heard by the High Court of Australia, which had to decide whether the non-parole period of Li's sentence was correctly described by reference to the ratio applying to another offender, and if not, whether the non-parole period should be adjusted to fit with the sentencing judge's expressed intention. The High Court was asked to consider whether the Court of Appeal had correctly interpreted the sentencing judge's intention in relation to the non-parole period.

The High Court held that the Court of Appeal had misinterpreted the sentencing judge's intention in relation to the non-parole period. The Court of Appeal had described the non-parole period by reference to the ratio applying to another offender, rather than the ratio applying to Li. The High Court held that the Court of Appeal's approach was incorrect and that the non-parole period should be adjusted to fit with the sentencing judge's expressed intention. The High Court held that the sentencing judge had intended to impose a non-parole period that was consistent with the ratio applying to Li, and not the ratio applying to another offender.

The High Court allowed Li's appeal and remitted the matter to the Court of Appeal of the Supreme Court of the Northern Territory for re-sentencing. The Court of Appeal was directed to adjust the non-parole period of Li's sentence to fit with the sentencing judge's expressed intention. The Court of Appeal was also directed to consider whether any other aspect of Li's sentence required adjustment in light of the High Court's decision. The High Court did not provide any further guidance on the appropriate non-parole period for Li's sentence, leaving that matter to be determined by the Court of Appeal on re-sentencing.

Orders