Li v The Queen - [2014] NSWCCA 341

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Li v R [2014] NSWCCA 341
Hearing dates: 13 February 2014
Decision date: 26 February 2014
Before: Hoeben CJ at CL at [1]
Schmidt at [2]
Barr AJ at [3]
Decision:
Grant leave to appeal
Dismiss the appeal

Catchwords: CRIMINAL LAW - sentence appeal - knowingly take part in the supply of a prohibited drug MDP2P - whether sentencing judge determined applicant's role in syndicate - parity of sentencing - whether applicant had justifiable sense of grievance - whether sentencing judge erred in applying parity principle - whether sentencing judge erred in applying totality principle.
Cases Cited: Director of Public Prosecutions (C'wealth) v Gregory [2011] VSCA 145; (2011) 211 A Crim R 147
Tyler and Chalmers v R [2007] NSWCCA 247; (2007) 173 A Crim R 458)
Category: Principal judgment
Parties: Patrick Li - Applicant
Regina - Crown
Representation:
Counsel:
S Odgers SC - Applicant
S Herbert - Respondent
Solicitors:
Audix Legal - Applicant
Solicitor for Public Prosecutions - Respondent

File Number(s): 2010/23470
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

10 August 2012

Before:

Woodburne SC DCJ

File Number(s):

2010/23470

JUDGMENT

The Application

HOEBEN CJ at CL: I agree with Barr AJ
SCHMIDT J: I agree with Barr AJ
BARR AJ: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant, Patrick Li, pleaded guilty to one count of knowingly taking part in the supply of a prohibited drug, 3 4 - Methylenedioxy-phenyyl -2-propanone, known as MDP2P, in an amount of 2,217.612kg, being an amount not less than the large commercial quantity for that drug. Woodburne SC DCJ sentenced the applicant to imprisonment and set a non-parole period of 12 years 3 months and a balance of term of 7 years 3 months. At the time of sentence the applicant was serving a sentence imposed in the County Court of Victoria for trafficking in a drug of dependence in a quantity not less than the commercial quantity. Her Honour set the applicant's sentence to commence on a day 2 years 3 months after the commencement of the Victorian sentence. The resulting aggregate sentence was of 21 years 9 months, comprising a non-parole period of 14 years 6 months and a balance of term of 7 years 3 months.
A co-offender, Keng Chuan Koh, was charged with the same offence. He pleaded guilty and on 10 June 2011 her Honour sentenced him to imprisonment. Her Honour set a non-parole period of 11 years 10 months and a balance of term of 4 years 8 months. Like this applicant, Koh had been convicted in Victoria of trafficking in a drug of dependence in a quantity not less than the commercial quantity and was already serving a sentence imposed in the County Court of Victoria. Her Honour ordered his sentence to commence on a day 2 years after the commencement of the Victorian sentence. As a…

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 [2014] NSWCCA 341
Case: [2014] NSWCCA 341
Decision Date: 26 February 2014

CaseChat Overview and Summary

In the case of Li v The Queen, the applicant sought to appeal against his sentence for his involvement in the supply of a prohibited drug, specifically MDP2P. The matter was heard in the High Court of Australia. The applicant argued that the sentencing judge had failed to properly consider his role within the syndicate and had erred in applying both the parity and totality principles in sentencing him.

The primary legal issues before the court were whether the sentencing judge had correctly assessed the applicant's role within the syndicate, and whether there had been any errors in the application of the parity and totality principles. The applicant contended that he had a justifiable sense of grievance, which should have been taken into account in the sentencing process. Additionally, the applicant claimed that the sentencing judge had failed to properly apply the totality principle by not sufficiently considering the totality of the applicant's involvement and the circumstances surrounding the offence.

The court considered the arguments presented by the applicant and reviewed the sentencing judge's assessment of the applicant's role within the syndicate. The court determined that the sentencing judge had not erred in concluding that the applicant was a significant participant in the syndicate. Furthermore, the court found that the sentencing judge had properly applied the parity and totality principles, taking into account all relevant factors, including the applicant's role and the totality of his involvement. The court concluded that the sentencing judge had not erred in the application of these principles, and thus the appeal against sentence was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the sentencing judge was upheld. The court found that the sentencing judge had correctly assessed the applicant's role within the syndicate and had properly applied the relevant sentencing principles.

Orders