R v Li - [2020] NSWSC 59

Supreme Court

New South Wales

Medium Neutral Citation: R v Li [2020] NSWSC 59
Hearing dates: On the papers
Decision date: 13 February 2020
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Application for review of sentence dismissed.

Catchwords: CRIMINAL LAW – Part 7 of the Crimes (Appeal and Review) Act 2001 – application for inquiry into sentence imposed by the District Court – applicant convicted of knowingly taking part in the supply of a large commercial quantity of a prohibited drug – whether sentencing judge erred in comparison of roles of applicant and co-offender – whether erroneous disparity in outcome – appearance of doubt or question as to mitigating circumstances not demonstrated – application dismissed
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
Koh v R [2013] NSWCCA 287
Li v R [2014] NSWCCA 18
Li v Attorney General for New South Wales [2018] NSWSC 674
Li v Attorney General for New South Wales [2019] NSWCA 95
R v Olbrich [1999] HCA 54; 199 CLR 270
Varley v Attorney-General (NSW) (1987) 8 NSWLR 30
Category: Principal judgment
Parties: Patrick Lam Li (Applicant)
Attorney-General of New South Wales (Respondent)
Representation:
Counsel:
Self-Represented (Applicant)
J S Caldwell (Respondent)
Solicitors:
Self-Represented (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2019/251207

DECISION

Introduction

This is an application for a review of a sentence (but not the conviction underpinning it), pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act). It has been brought by Mr Patrick Lam Li (the applicant), who, I infer, has prepared the application without the assistance of a lawyer.
The material placed before me consists of a substantial collection of transcripts of legal proceedings, statements of witnesses, remarks on sentence, and judgments of intermediate appellate courts (the primary documents). The written submissions in chief of the applicant extend over 67 pages, and his submissions in reply extend over 28 pages. I also have the assistance of written submissions opposing the application from counsel for the Attorney-General of New South Wales (whilst appreciating that these are not proceedings, I shall refer for convenience to the Attorney-General as the respondent).

History of the matter

The primary documents establish the following thumbnail chronology.
On 1 August 2008, the applicant was sentenced in the County Court of Victoria by his Honour Judge Gullaci for the offence (against the laws of that State) of trafficking in a commercial quantity of a drug of dependence. The maximum penalty was imprisonment for 25 years.
Mr Keng Chuan Koh was the co-offender of the applicant, and I shall describe him as such henceforward. Judge Gullaci in his remarks on sentence (VIC ROS) recounted that the co-offender had been sentenced by a different County Court judge on 12 November 2007.
In a nutshell, the facts underpinning the offence of the applicant in Victoria were as follows. 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 R v Li

Details

AGLC: R v Li [2020] NSWSC 59
Case: [2020] NSWSC 59
Decision Date: 13 February 2020

CaseChat Overview and Summary

The matter of R v Li involved the applicant, who had been convicted and sentenced by the District Court for his involvement in the supply of a substantial amount of a prohibited drug. The applicant sought an inquiry into the sentence under Part 7 of the Crimes (Appeal and Review) Act 2001. The central issue before the court was whether the sentencing judge had erred in assessing the roles of the applicant and his co-offender, and whether there was an erroneous disparity in the outcome of their sentences. Additionally, the court had to determine whether there was a sufficient demonstration of a doubt or question regarding the mitigating circumstances to warrant further inquiry.

The court analysed the sentencing judge's assessment of the roles and contributions of the applicant and his co-offender. It found that the sentencing judge had carefully considered the evidence and the roles of each participant, concluding that the disparity in sentences was justified by the different levels of involvement and responsibility. The court held that the appearance of doubt or question as to the mitigating circumstances had not been sufficiently demonstrated. As a result, the application for an inquiry into the sentence was dismissed. The court found no basis to interfere with the sentence imposed by the District Court.

Orders