R v Li

Case [2019] NSWDC 824 26 July 2019

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District Court

New South Wales

Medium Neutral Citation: R v LI [2019] NSWDC 824
Hearing dates: 14 June 2019, 12 July 2019
Date of orders: 26 July 2019
Decision date: 26 July 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to term of imprisonment of 18 months to be served by way of and Intensive Corrections Order.

Catchwords: CRIME – Sentence – Federal offence - possess tobacco products knowing they were imported with intent to defraud the revenue – worker or labourer under direction of older trusted family friend – co-operation with authorities – gave evidence at trial of co-offender – witness of truth – prior good character – plea of guilty – contrition – Chinese national studying in Australia – pro-social background – low risk of re-offending
Legislation Cited: Crimes Act (Cth) 1914, s16A(2); s17A; s 20AB (1); s 19AC
Crimes (Sentencing Procedure) Act 1999, s 7(1)
Criminal Code (Cth), s 11.2A
Customs Act 1900, s 233BAD(2)
Cases Cited: De Simoni (1981) 147 CLR 383
Douar v R [2005] NSWCCA 455
DPP v De La Rosa [2010] NSWCCA 194
DPP v Gow [2015] NSWCCA 208
Green v R (2011) 244 CLR 462
Hili v R [2010] HCA 45
Holland [2011] NSWCCA 65
Jimmy v R [2010] 77 NSWLR 540
Jones v R [2010] HCA 45
Lowe v R (1984) 154 CLR 606.
Postiglone v R (1997) 189 CLR 295
R v Blackman and Walters [2001] NSWCCA 121
R v El Hani [2004] NSWCCA 162
R v Olbrich [1999] HCA 54
R v Pogson [2002] NSWCCA 225
R v Saleh [2015] NSWCCA 299
R v Sukkar [2006] NSWCCA 92
Yardley v Betts [1979] 22 SASR 108
Zamagias v R [2002] NSWCCA 17
Zhang v R [2017] SASCFC 5
Category: Sentence
Parties: Regina (Crown Cth)
Jingyu Li (offender)
Representation:
Counsel:
Mr Emmett (Crown)
Solicitors:
Ms Naido (offender)

File Number(s): 2017/00138392
Publication restriction: No

Judgment

The prisoner appears today for sentence, many months after it should have occurred, in respect of a charge to which he pleaded guilty earlier this year jointly with Qingtao Liu and others possessing tobacco products knowing that the goods were imported with the intent to defraud the revenue. This charge was one for which he was committed for trial. I will come back to the issue of discounts for the utilitarian benefit for the plea of guilty and for facilitating the course of justice and his cooperation later in my reasons.
This is an offence according to the material provided to me by the Crown contrary to s 233BAD(2) Customs Act 1900 in conjunction with s 11.2A Criminal Code (Cth). It has a maximum penalty of ten years imprisonment and or pecuniary penalty of $25,200. There are no other charges to be dealt with.
The prisoner, as I understand it, entered the plea of guilty on 6 February 2019, having been committed for trial in April 2018. He has spent one night in pre-sentence custody.
The “co-accused” of the prisoner, Qingtao Liu, was tried before…

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 [2019] NSWDC 824
Case: [2019] NSWDC 824
Decision Date: 26 July 2019

CaseChat Overview and Summary

The respondent, Li, a Chinese national studying in Australia, was charged with possessing tobacco products with knowledge that they had been imported with intent to defraud the revenue. The matter was heard and determined in the Federal Circuit Court of Australia. Li pleaded guilty to the charge, and the prosecution and defence agreed that Li should be sentenced in accordance with the principles of the sentencing act and relevant case law.

The primary legal issue for the court was to determine an appropriate sentence for Li, who had no prior criminal history and had demonstrated a degree of co-operation with authorities by giving evidence at the trial of a co-offender and testifying as a truthful witness. The court considered the relevant factors, including Li's pro-social background, the circumstances of the offence, and the likelihood of re-offending. The court also took into account Li's contrition and the fact that he was a worker or labourer under the direction of an older and trusted family friend at the time of the offence.

The court found that while Li's involvement in the offence was serious, his background, level of involvement, and co-operation with authorities warranted a degree of leniency. The court determined that a term of imprisonment was appropriate, but that it should be served by way of an Intensive Corrections Order to provide Li with an opportunity to address his offending behaviour and reduce the risk of re-offending. The court sentenced Li to a term of imprisonment of 18 months, to be served by way of an Intensive Corrections Order.

The court made orders that Li be sentenced to a term of imprisonment of 18 months to be served by way of an Intensive Corrections Order.

Orders

Orders of the court

Sentenced to term of imprisonment of 18 months to be served by way of and Intensive Corrections Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Li [2019] NSWDC 824

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Zhang [2017] SASCFC 5
Citation 1 (Para 22)

…The Crown in submissions, as it had done in Mr Liu’s submissions, took me to the South Australian Full Court decision of Zhang [2017] SASCFC 5 and particularly at [32] - [34]. I need not repeat what is contained in those judgments. I accept what is put in those judgments. It is directly apposite to what I am conce…
R v Saleh [2015] NSWCCA 299
Citation 2 (Para 2)

…ecision of Saleh which I read with some considerable interest. I do not believe Saleh was brought to my attention in the sentencing of Mr Liu ( Saleh [2015] NSWCCA 299). Mr Saleh was an older man than this prisoner and had much more substantial involvement in the importation of the cigarettes involved, albeit that t…
Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
Citation 3 (Para 20)

…tive cases. Two particular cases spring to mind, a decision of McClennan CJ at CL in Holland [2011] NSWCCA 65, at [3], and also the decision of Gow [2015] NSWCCA 208, I particularly refer to Basten JA and Hamill J at [35]-[52].…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 4 (Para 16)

…xpressed as a manifestation of the “Aristotelian concept of equality”. It has been the subject of comment in a range of high authority, Green v R (2011) 244 CLR 462 particularly at [28]; Postiglone v R (1997) 189 CLR 295, particularly refer to the observations of Dawson and Gaudron JJ in that judgment at p 301; and o…
R v Holland [2011] NSWCCA 65
Citation 5 (Para 20)

…al Appeal about the consideration of supposedly comparative cases. Two particular cases spring to mind, a decision of McClennan CJ at CL in Holland [2011] NSWCCA 65, at [3], and also the decision of Gow [2015] NSWCCA 208, I particularly refer to Basten JA and Hamill J at [35]-[52].…
Hili v The Queen [2010] HCA 45
Citation 6 (Para 20)

…s shortly. It is important to note in relation to the consideration of the comparative cases what the High Court said about them in Hili; Jones v R [2010] HCA 45 particularly at [54]. I note in another context observations have been made by the Court of Criminal Appeal about the consideration of supposedly compa…
Pavicevic v The Queen [2010] ACTCA 25
Citation 7 (Para 16)

…n that judgment at p 301; and of course before that where the expression “justifiable sense of grievance” emerged in the decision of Lowe v R (1984) 154 CLR 606.…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 8 (Para 21)

…McClennan CJ at CL made the point that the categories of drug importers that he discussed in the decision of De La Rosa [2010] NSWCCA 194, particularly at [216]-[254], were not such that it was appropriate to fix a sentence that fitted within the categories that he identified in that judgment. He said in Holland tha…
Jimmy v R [2010] NSWCCA 60
Citation 9 (Para 17)

…to be referred to in this context is a decision of the Court of Criminal Appeal of Campbell JA, Howie, Rothman JJ, that decision is Jimmy v R [2010] 77 NSWLR 540. In relation to the application of the “parity” principles of sentence, amongst other observations that have been made, is the importance of a Court…
R v Sukkar [2006] NSWCCA 92
Citation 10

…1 R v El Hani [2004] NSWCCA 162 R v Olbrich [1999] HCA 54 R v Pogson [2002] NSWCCA 225 R v Saleh [2015] NSWCCA 299 R v Sukkar [2006] NSWCCA 92 Yardley v Betts [1979] 22 SASR 108 Zamagias v R [2002] NSWCCA 17 Zhang v R [2017] SASCFC 5 Category: Sentence Parties: Regina (Crown Cth) Jingyu Li (offender) Representation…
Douar v R [2005] NSWCCA 455
Citation 11

…t 1999, s 7(1) Criminal Code (Cth), s 11.2A Customs Act 1900, s 233BAD(2) Cases Cited: De Simoni (1981) 147 CLR 383 Douar v R [2005] NSWCCA 455 DPP v De La Rosa [2010] NSWCCA 194 DPP v Gow [2015] NSWCCA 208 Green v R (2011) 244 CLR 462 Hili v R [2010] HCA 45 Holland [2011] NSWCCA 65 Jimmy v R [2010] 77 NSWLR 540 Jon…
R v El Hani [2004] NSWCCA 162
Citation 12

…HCA 45 Lowe v R (1984) 154 CLR 606. Postiglone v R (1997) 189 CLR 295 R v Blackman and Walters [2001] NSWCCA 121 R v El Hani [2004] NSWCCA 162 R v Olbrich [1999] HCA 54 R v Pogson [2002] NSWCCA 225 R v Saleh [2015] NSWCCA 299 R v Sukkar [2006] NSWCCA 92 Yardley v Betts [1979] 22 SASR 108 Zamagias v R [2002] NSWCCA…
R v Israil [2002] NSWCCA 225
Citation 13 (Para 13)

…s a substantial punishment. Even if it does reflect a significant degree of leniency because it does not involve immediate incarceration ( R v Pogson [2002] NSWCCA 225 [8]).…
R v Zamagias [2002] NSWCCA 17
Citation 14 (Para 14)

…the course identified in decisions such as Douar 2005, the judgment of Johnson J, and before that the judgment of Howie J in the decision of Zamagias [2002] NSWCCA 17, particularly [26]. The Court is required to undertake an entirely honest approach to the matter and determine firstly, if a term of imprisonment is…
R v Blackman and Walters [2001] NSWCCA 121
Citation 15 (Para 15)

…me Court that has been adopted in the New South Wales Court of Criminal Appeal on a number of occasions. I particularly cite R v Blackman and Walters [2001] NSWCCA 121, one of the first decisions of the Court of Criminal Appeal to reflect upon the appropriateness of suspended sentences under the then introduced or r…
R v Olbrich [1999] HCA 54
Citation 16

…R 606. Postiglone v R (1997) 189 CLR 295 R v Blackman and Walters [2001] NSWCCA 121 R v El Hani [2004] NSWCCA 162 R v Olbrich [1999] HCA 54 R v Pogson [2002] NSWCCA 225 R v Saleh [2015] NSWCCA 299 R v Sukkar [2006] NSWCCA 92 Yardley v Betts [1979] 22 SASR 108 Zamagias v R [2002] NSWCCA 17 Zhang v R [2017] SASCFC…
Postiglione v the Queen [1997] HCA 26
Citation 17 (Para 16)

…of equality”. It has been the subject of comment in a range of high authority, Green v R (2011) 244 CLR 462 particularly at [28]; Postiglone v R (1997) 189 CLR 295, particularly refer to the observations of Dawson and Gaudron JJ in that judgment at p 301; and of course before that where the expression “justifiable s…
R v De Simoni [1981] HCA 31
Citation 18 (Para 25)

…ight that has to be given to specific deterrence. Of course, as the Crown points out by reference to the 1981 decision of the High Court in De Simoni (1981) 147 CLR 383, the prisoner is to be sentenced for that with which he is charged, not for other offending. However, the other conduct as I said, can have clear rel…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 7(1)
2 mentions (from Para 78)

Medium Neutral Citation:	R v LI [2019] NSWDC 824
Hearing dates:	14 June 2019, 12 July 2019
Date of orders:	26 July 2019
Decision date:	26 July 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to term of imprisonment of 18 months to be served by way of and Intensive Corrections Order.
Catchwords:	CRIME – Sentence – Federal offence - possess tobacco products knowing they were imported with intent to defraud the revenue – worker or labourer under direction of older trusted family friend – co-operation with authorities – gave evidence at trial of co-offender – witness of truth – prior good character – plea of guilty – contrition – Chinese national studying in Australia – pro-social background – low risk of re-offending
Legislation Cited:	Crimes Act (Cth) 1914, s16A(2); s17A; s 20AB (1); s 19AC Crimes (Sentencing Procedure) Act 1999, s 7(1) Criminal Code (Cth), s 11.2A Customs Act 1900, s 233BAD(2)
Cases Cited:	De Simoni (1981) 147 CLR 383 Douar v R [2005] NSWCCA 455 DPP v De La Rosa [2010] NSWCCA 194 DPP v Gow [2015] NSWCCA 208 Green v R (2011) 244 CLR 462 Hili v R [2010] HCA 45 Holland [2011] NSWCCA 65 Jimmy v R [2010] 77 NSWLR 540 Jones v R [2010] HCA 45 Lowe v R (1984) 154 CLR 606. Postiglone v R (1997) 189 CLR 295 R v Blackman and Walters [2001] NSWCCA 121 R v El Hani [2004] NSWCCA 162 R v Olbrich [1999] HCA 54 R v Pogson [2002] NSWCCA 225 R v Saleh [2015] NSWCCA 299 R v Sukkar [2006] NSWCCA 92 Yardley v Betts [1979] 22 SASR 108 Zamagias v R [2002] NSWCCA 17 Zhang v R [2017] SASCFC 5
Category:	Sentence
Parties:	Regina (Crown Cth) Jingyu Li (offender)
Representation:	Counsel: Mr Emmett (Crown) Solicitors: Ms Naido (offender)
File Number(s):	2017/00138392
Publication restriction:	No