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Li v The Queen

Li v The Queen

Case [2021] NSWCCA 75 23 April 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Li v R [2021] NSWCCA 75
Hearing dates: 23 November 2020
Decision date: 23 April 2021
Before: Hoeben CJ at CL at [1];
Bellew J at [75];
Wright J at [76]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – supply a prohibited drug on an ongoing basis – maximum penalty of imprisonment for 20 years – four matters on a Form 1 – whether sentence imposed on the applicant was manifestly excessive – whether applicant had a justified sense of grievance by reason of receiving a longer sentence than a co-offender – same judge sentencing both offenders – clear differences between applicant and co-offender – parity principles observed – no error on part of sentencing judge – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Chamon v R [2020] NSWCCA 112
Corda v R [2014] NSWCCA 281
Dayment v R [2018] NSWCCA 132
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
King v R [2018] NSWCCA 273
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242

Category: Principal judgment
Parties: Jielun Li – Applicant
Regina – Respondent
Representation:
Counsel:
M Curry – Applicant
C Young – Respondent
Solicitors:
Marsdens Law Group – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2018/288002
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 December 2019

Before:

Robison DCJ

File Number(s):

2018/288002

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by his Honour Judge Robison (the sentencing judge) on 19 December 2019 in the District Court at Sydney.

The applicant pleaded guilty in the Local Court to the offence of supply a prohibited drug, namely cocaine on an ongoing basis for financial reward (ongoing supply). That is an offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). The maximum penalty is imprisonment for 20 years and/or a fine of 3,500 penalty units. There is no standard non-parole period.
At the time of sentence, the applicant asked the Court to take into account a further four offences on a Form 1:

supply prohibited drug, namely 7g of cocaine, contrary to s 25(1) of the DMTA. This matter was certified to the District Court and had a maximum penalty of imprisonment for 15 years. There is no standard non-parole period;

possess prohibited drug, namely 1.05g of 3,4-Methylenedioxymethylamphetamine (“MDMA”), contrary to s 10(1) of the…

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 [2021] NSWCCA 75
Case: [2021] NSWCCA 75
Decision Date: 23 April 2021

CaseChat Overview and Summary

The appellant, Li, appealed against the sentence imposed by the Supreme Court of Victoria, arguing it was manifestly excessive. The matter involved the supply of a prohibited drug on an ongoing basis, an offence carrying a maximum penalty of 20 years' imprisonment. The appeal was based on four grounds, including whether the sentence was manifestly excessive and whether the appellant had a justified sense of grievance due to receiving a longer sentence than a co-offender. The same judge sentenced both the appellant and the co-offender, and the appellant argued that there were clear differences between the two, and parity principles were not observed.

The court considered whether the sentence imposed was manifestly excessive and whether the appellant had a justified sense of grievance. It noted that the sentencing judge had considered all relevant factors and had given proper weight to the differences between the appellant and the co-offender. The court found that the judge had not erred in concluding that the appellant was more culpable than the co-offender, and that the sentence imposed was not manifestly excessive. The court also found that the appellant did not have a justified sense of grievance, as the judge had observed parity principles and taken into account the differences between the appellant and the co-offender.

The court dismissed the appeal, holding that the sentence imposed was appropriate and not manifestly excessive. The court found that the sentencing judge had not erred in concluding that the appellant was more culpable than the co-offender and that the sentence imposed was not manifestly excessive. The court also held that the appellant did not have a justified sense of grievance, as the judge had observed parity principles and taken into account the differences between the appellant and the co-offender. The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.

No further orders were made.

Orders