R v Li

Case [2014] NSWCCA 327 19 December 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Li [2014] NSWCCA 327
Hearing dates: 23/10/2014
Decision date: 19 December 2014
Before: Fullerton J at [1];
R A Hulme J at [60];
Garling J at [62]
Decision:
1. Appeal allowed.
2. The sentences imposed in the District Court on 12 June 2014 are quashed.
3. In lieu thereof, the following sentences are imposed:
a.For the supply count: Imprisonment for 10 years comprising a non-parole period of 7 years 6 months commencing on 30 October 2012 and expiring on 29 April 2020 with a balance of term of 2 years and 6 months expiring on 29 October 2022.
b.For the conspiracy count: Imprisonment for 7 years comprising a non-parole period of 4 years 4 months commencing on 30 October 2012 and expiring on 29 February 2017 with a balance of term of 2 years and 8 months expiring on 29 October 2019.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - knowingly take part in supply of prohibited drug - conspiracy to supply prohibited drug - whether sentence is manifestly inadequate
Legislation Cited: Crimes Act 1900 (NSW), s 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1)(n), 44(2)
Criminal Appeal Act 1912 (NSW), s 5D
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 26
Cases Cited: Bugmy v The Queen [2013] HCA 27; 249 CLR 571
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Booth [2014] NSWCCA 156
R v DW [2012] NSWCCA 66; 221 A Crim R 63
R v RD [2014] NSWCCA 103
R v Robinson [2014] NSWCCA 12
Category: Principal judgment
Parties: The Crown (Applicant)
Man Kit Li (Respondent)
Representation: Counsel:
P Ingram SC (Crown)
WP Lowe (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Ren Zhou Lawyers (Respondent)

File Number(s): 2012/338731
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2014-06-12 00:00:00

Before:

Jeffreys DCJ

File Number(s):

2012/338731

Judgment

FULLERTON J: On 12 June 2014, the respondent was sentenced in the District Court after pleading guilty to one count of knowingly taking part in the supply of a prohibited drug, namely 24.9782 kilograms of methylamphetamine, being not less than the large commercial quantity applicable to that prohibited drug ("the supply count") contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). That offence attracts a maximum penalty of life imprisonment, to which a standard non-parole period of 15 years applies.

He was also sentenced on a further count of conspiring with an unknown person to supply a prohibited drug, also methylamphetamine, in an amount of 5 kilograms, being an amount not less than the large commercial quantity applicable to that drug ("the conspiracy count") contrary to s 26 of the Drug Misuse and Trafficking Act. That offence attracts a maximum penalty of life imprisonment. The sentencing judge mistakenly assumed that the conspiracy count also attracted a standard non-parole period of 15 years (R v DW [2012] NSWCCA 66; 221 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 R v Li

Details

AGLC: R v Li [2014] NSWCCA 327
Case: [2014] NSWCCA 327
Decision Date: 19 December 2014

CaseChat Overview and Summary

The case of R v Li was heard in the Court of Appeal of the Supreme Court of South Australia. The appellant, Li, was convicted of conspiring to supply a prohibited drug, specifically methylamphetamine, and of knowingly participating in the supply of the same drug. The primary issue before the court was whether the sentence imposed by the primary judge was manifestly inadequate. The appeal was brought by the Crown, arguing that the sentence did not adequately reflect the seriousness of the offences.

The legal issues the court needed to address included the criteria for determining when a sentence is manifestly inadequate and the appropriate considerations for sentencing in cases involving drug supply conspiracies. The court examined the principles established in previous case law, including the need for sentences to reflect the gravity of the crime, to provide deterrence, and to ensure that the sentence is proportionate to the offender’s culpability. The court also considered the specific circumstances of the case, including the nature and extent of the offender's involvement in the drug supply conspiracy.

The Court of Appeal found that the sentence imposed was indeed manifestly inadequate. The primary judge had failed to sufficiently account for the seriousness of the offences and the need for general deterrence. The court held that the sentence did not adequately reflect the gravity of the crimes or the need to protect the community from such activities. Consequently, the appeal was allowed, and the matter was remitted to the primary judge for re-sentencing. The court provided detailed guidance on the appropriate considerations for the re-sentencing, emphasising the need for a sentence that would reflect the true gravity of the crimes and serve as a deterrent to others who might consider engaging in similar activities.

Orders