R v Li

Case [2016] SASCFC 152

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LI

[2016] SASCFC 152

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Lovell)

22 December 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE - PARTICULAR CASES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - PROVOCATION

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - PARTICULAR CASES

This is an application for permission to appeal against sentence. 

The applicant was charged with the murder of his mother.  She was killed in March 2011.  The applicant was tried before a jury who returned a verdict of not guilty of murder but guilty of manslaughter.

The sentencing judge imposed a head sentence of nine years with a non-parole period of seven years, two months and 11 days.  The judge could not find good reason to suspend the sentence.  The head sentence and non-parole period commenced from 4 July 2014 being the date when the applicant was taken into custody upon his return to Australia from China. 

The applicant submits that the judge fell into error in finding beyond reasonable doubt that the applicant killed his mother as a result of a loss of self-control amounting to the partial defence of provocation.  He submits it was not open to the trial judge to make this finding consistent with the verdict of the jury and that the sentence is excessive.

The applicant sought permission to amend his notice of appeal to include a ground complaining of the approach the sentencing judge took to the application of s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA). He submits that the judge considered that, given the acquittal on the charge of murder and the verdict of guilty to manslaughter, no basis existed for her to consider the operation of s 32A which permits the imposition of a non-parole period of less than the mandatory minimum of four-fifths of the head sentence. He submits special reasons exist for the purposes of s 32A(2)(b) so as to warrant a non-parole period shorter than four-fifths of the head sentence.

Held per Stanley J (Peek J agreeing) dismissing the appeal:

1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [16]).

2.  It is not reasonably arguable that the judge fell into error in finding beyond reasonable doubt that the applicant killed his mother as a result of a loss of self-control amounting to the partial defence of provocation.  Permission to appeal on this ground is refused (at [46]).

3. The conduct of…

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AGLC
R v Li [2016] SASCFC 152
Case
[2016] SASCFC 152
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed on Mr Li for the manslaughter of his mother. The primary ground of appeal argued that the sentence was manifestly excessive, with a specific contention that the sentencing judge erred in finding that the killing resulted from a loss of self-control amounting to provocation. Mr Li also sought to amend his appeal to include a ground challenging the sentencing judge's interpretation and application of section 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) concerning the fixation of a non-parole period. The appeal was heard by Peek, Stanley, and Lovell JJ of the Supreme Court of South Australia, Court of Criminal Appeal.

The legal issues before the court were whether the sentencing judge erred in finding that the applicant killed his mother as a result of provocation, and whether the sentencing judge correctly applied section 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) when determining the non-parole period. Specifically, the court had to consider whether the sentencing judge was correct in her view that a person who has already received the benefit of a provocation defence for manslaughter should not receive a further discount for that same conduct when fixing a non-parole period.

The court dismissed the ground of appeal relating to provocation, agreeing with the sentencing judge's findings. Regarding the application of section 32A(3), the court granted permission to appeal but ultimately dismissed the appeal on this ground. The sentencing judge had expressed the view that Parliament did not intend for a person to receive a "double discount" for provocation, first by reducing the charge to manslaughter and then again when setting the non-parole period. However, the Court of Criminal Appeal referred to the decision in *R v Narayan*, which indicated that while the conduct of the victim may have mitigated the offence to manslaughter, it remains appropriate to consider that conduct when fixing the non-parole period, as it is a relevant fact. The court acknowledged that while the process of fixing a non-parole period has evolved, the punitive, protective, and rehabilitative purposes remain relevant.

Orders

Orders of the court

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Background

Background to the litigation

To understand the victim’s conduct it is necessary to set out the family background in some detail.Family background In his report of 11 January 2016, Dr Brereton, having noted that important details regarding the offending were disputed, stated:[52]Nevertheless, Mr Li provided a wealth of information regarding his upbringing and his relationship with his mother. The history he provided in this regard had subtleties of detail that persuaded me his account was accurate and that he did suffer an abusive relationship at the hands of his mother.[52] Appeal Book p 75. As already discussed the Judge accepted the fact that there was an abusive relationship although not the extent of the alleged physicality of that relationship suggested by the applicant. It is important however to understand the applicant’s background in its entirety. The applicant’s parents, during the 1980s when China opened up to the world, ran several successful businesses. Unfortunately, shortly after Mr Li was born, the businesses started to decline. This led to them spending larger amounts of time at work and raising the applicant was not a priority. A few months after his birth his parents handed custody of him to his maternal grandparents in Mongolia. For 10 years his grandparents became his primary carers and substitute parents. He rarely saw his parents; they visited Mongolia a couple of times a year. When attending they would give him a lot of gifts and this confused him because they “were strangers”. The visits were brief and did not provide him with an opportunity to bond with them. The applicant’s grandparents lived in relatively poor conditions whereas his parents lived a somewhat lavish lifestyle. On occasions when he visited his parents he remembered that their relationship was tumultuous and on occasions violent. At an early age he noted that his father had problems with alcohol and controlling his anger. He witnessed aggressive behaviour towards his mother. When the applicant was about 10 years old his parents decided to immigrate to Australia. He was unaware of the plan until his parents arrived in Mongolia to take him with them; he had no time to prepare. At that time he was in the middle of his primary school term in China. His grandparents were devastated by his parents’ decision to take the applicant away but their wishes were ignored. The applicant and his parents arrived in Adelaide in 2003. The applicant could not speak English and he was enrolled in a primary school in order for him to learn. He was subsequently transferred to the Parkside Primary School for his Year Five. At this time his home environment at that stage remained as volatile as when he had visited his parents during his early childhood. His father drank excessively and his parents argued on a regular basis. Mr Li witnessed violence towards his mother. Further the applicant experienced difficulty transitioning to the Australian lifestyle and the academic curriculum. He found the language barrier especially challenging and was bullied at school over his poor command of the language. His parents also relied on him to be their interpreter as they had never learnt English properly.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J (dissent)
While I consider this ground of appeal is arguable, thereby justifying a grant of permission to appeal on this ground, for the above reasons I would nonetheless dismiss the appeal. Conclusion I would refuse permission to appeal on ground 1. I would grant permission to appeal on the s 32A ground but dismiss the appeal on that ground. LOVELL J: I have had the advantage of reading Stanley J’s judgment. I gratefully adopt his summary of the facts in relation to the offending in this matter. I do not need to repeat those matters. There were a number of grounds of appeal. However the main ground of appeal, ground nine, was that the sentence was manifestly excessive. It was argued as a particular of ground nine that the learned sentencing Judge erred in making specific findings beyond reasonable doubt that the applicant killed his mother as a result of a loss of self-control amounting to the partial defence of provocation. In relation to that ground I would dismiss that ground of appeal and for the reasons expressed by Stanley J. The applicant was granted leave to amend his notice of appeal to include the ground that the sentencing Judge erred in her interpretation and application of s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”). When fixing the non-parole period the learned sentencing Judge stated:[32]I have considered whether any provision of s 32A(3) of the Criminal Law (Sentencing) Act 1988 (SA) applies to you. However, I cannot think that Parliament intended that a person who has already received the benefit of a partial defence of provocation by the verdict of guilty to the crime of manslaughter should, in effect, be given a double discount for that very same conduct when imposing a non-parole period.[32] Appeal Book pp 142-143. In R v Narayan[33] the Court did not accept that reasoning. [33] [2011] SASCFC 61. Doyle CJ (with whom Nyland and David JJ agreed) stated:[34]On appeal, Mr Kimber took a somewhat different approach. He submits that Mr Narayan’s conduct is already accounted for by the verdict of guilty of manslaughter on the basis of provocation. He submits that the same conduct cannot be brought to account again when considering the non‑parole period, or in the alternative that it is entitled only to minimal weight. He submits that Mr Narayan’s conduct has already had its effect, in reducing the offence to manslaughter and thereby attracting a sentencing range quite different from that in the case of murder.I do not agree. As the plurality said in R v A, D, referring to the mandatory period:[33] The court must consider whether to fix a non-parole period that is longer, the same as or shorter than this period. It will not always be necessary to break the matter up into three separate questions. Experience indicates that often only one of the three options will be realistically open. But in the end they are the options open to the court. The task of the court is no longer to fix the appropriate non-parole period according to established principles.[34] However, while there are distinct differences between the fixation of a non‑parole period according to established principles, and according to the new provisions, the process remains one in which the punitive, protective and rehabilitative purposes of fixing a non-parole period remain relevant: cf R v Barnett at [49] Vanstone J.Although Mr Narayan’s conduct on the morning in question, coupled with Mrs Narayan’s loss of control, mean that the offence is manslaughter rather than murder, it is still appropriate when considering the non-parole period to bear in mind that the conduct of Mr Narayan substantially mitigated Mrs Narayan’s conduct. That is the fact. Her conduct was the sudden loss of control, resulting in her throwing the petrol and then igniting it.[34] R v Narayan [2011] SASCFC 61 [47]-[48].

Ratio Decidendi

Legal Principle Established

Established by:

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