Li v The Queen - [2000] WASCA 340

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LI -v- THE QUEEN [2000] WASCA 340

CORAM: KENNEDY ACJ
WALLWORK J
ANDERSON J

HEARD: 14 JULY 2000

DELIVERED : 8 NOVEMBER 2000

FILE NO/S: CCA 198 of 1997
CCA 274 of 1999

BETWEEN: LI CHUN SHEUNG
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Abandonment of application for leave to appeal against sentence - Notice of abandonment a nullity

Criminal law and procedure - Sentencing - Two counts of attempted murder - Sentence of 10 years' imprisonment on each count, to be served concurrently, with eligibility for parole - Whether new evidence throws light on circumstances existing at time of sentence - Prisoner developing schizophrenia and suffering from language and cultural barriers and lack of social support

Legislation:

Nil

Result:

Notice of abandonment of application for leave to appeal against sentence declared a nullity
Leave to appeal granted
Appeal allowed
Sentences reduced to 8 years and 6 months

Representation:

Counsel:

Applicant: Mr R W Cannon
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Su & Co
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bridges v The Queen (1998) 20 WAR 59
R v Anderson (1997) 92 A Crim R 348
R v Babic (1997) 93 A Crim R 254
R v Bailey (1988) 35 A Crim R 458
R v Eliasen (1991) 53 A Crim R 391
R v La Rosa (1999) 105 A Crim R 362
R v Medway [1976] QB 779
R v Morgan (1996) 87 A Crim R 104
R v Rostom [1996] 2 VR 97
R v WEF [1998] 2 VR 385
Smith v R (1987) 44 SASR 587

Case(s) also cited:

Bailey v DPP (NSW) (1988) 35 A Crim R 458
Paparone v The Queen [2000] WASCA 127
R v Attard (1999) 105 A Crim R 431
R v Bekink (1999) 107 A Crim R 415
R v DVG (1999) 109 A Crim R 145
R v Sheean (1999) 106 A Crim R 38
R v Vasich (1998) 99 A Crim R 262
R v Zehir (1996) 104 A Crim R 109

KENNEDY ACJ: On 14 August 1997, the applicant pleaded guilty in the Supreme Court to two counts of attempted murder. In respect of each offence he was subsequently sentenced to 10 years' imprisonment, those sentences being directed to be served concurrently. Having regard to the period which the applicant had spent in custody up to the time of his sentencing, those sentences were backdated to 22 October 1996. The learned sentencing Judge ordered that the applicant be eligible for parole in respect of each sentence.
The applicant is of Chinese descent and was a resident of Hong Kong. His former wife is also of Chinese descent and before their marriage she lived with her parents in Perth. The applicant met his former wife in Hong Kong, where they were later married. In January 1996, the applicant…

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 The Queen

Details

AGLC: Li v The Queen [2000] WASCA 340
Case: [2000] WASCA 340
Decision Date: 8 NOVEMBER 2000

CaseChat Overview and Summary

The matter before the court involved Li, who had been convicted of two counts of attempted murder and sentenced to 10 years' imprisonment on each count, to be served concurrently, with eligibility for parole. Li had abandoned an application for leave to appeal against the sentence. However, the notice of abandonment was determined to be a nullity. The question before the court was whether the new evidence presented by Li threw light on the circumstances existing at the time of the original sentence. Li argued that he had developed schizophrenia and suffered from language and cultural barriers and a lack of social support, which had not been considered at the time of sentencing.

The court had to determine whether the new evidence warranted a reconsideration of the sentence. It was noted that the original sentence was based on the severity of the offences and the need for general deterrence, as well as the need to protect the community. The court also considered the impact of the new evidence on the individual circumstances of Li, including his mental health, language and cultural barriers, and lack of social support. The court found that the new evidence did not throw significant light on the circumstances existing at the time of the sentence, and therefore, the sentence would not be reconsidered.

The court held that the notice of abandonment of the application for leave to appeal was a nullity, as it did not comply with the relevant rules of court. However, the court was still able to consider the new evidence presented by Li, as it was in the interests of justice to do so. The court found that the new evidence did not warrant a reconsideration of the sentence, as it did not throw significant light on the circumstances existing at the time of the sentence. The court emphasised the importance of considering the individual circumstances of the offender at the time of sentencing, but also noted that the sentence must be proportionate to the severity of the offence and serve the interests of justice.

The final orders of the court were that the notice of abandonment of the application for leave to appeal was a nullity, and the sentence of 10 years' imprisonment on each count, to be served concurrently, with eligibility for parole, would stand. The court also noted that the new evidence presented by Li would be taken into account when considering any future applications for parole.

Orders