R v Li; R v Jin - [2014] ACTSC 304

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Li; R v Jin
Citation:	[2014] ACTSC 304
Hearing Date(s):	23 September 2014
DecisionDate:	23 September 2014
Before:	Murrell CJ
Decision:	(1) Mr Li sentenced to 2 years 7 months’ imprisonment, suspended from 26 September 2014; and (2) Ms Jin sentenced to time served to 26 September 2014.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – Co-offenders – early guilty pleas – cultivate commercial quantity of controlled plant – aid and abet cultivate commercial quantity of controlled plant – sentencing purposes – terminal illness – deportation upon release
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) s 616
Parties:	The Queen (Crown) Chungseng Li; Manxin Jin (Offenders)
Representation:	Counsel Mr M Fernandez (Crown) Mr G Jones (Offenders)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offenders)
File Number(s):	SCC 153 of 2014; SCC 195 of 2014

MURRELL CJ:

Introduction

Mr Li entered a plea of guilty at the earliest reasonable opportunity to the offence that on 3 April 2014 he cultivated a commercial quantity of a controlled plant with the intent that that plant be sold contrary to s 616(3) of the Criminal Code 2002 (ACT). That offence carries a maximum available penalty of 25 years’ imprisonment and/or a very substantial fine. The commercial quantity is between 100 and 1,000 plants. In this case there were approximately 371; in any event, no more than 400 plants were involved.

The co-offender, Ms Jin, pleaded guilty at the earliest reasonable opportunity to aiding and abetting the offence committed by Mr Li. This offence also carries a maximum available penalty of 25 years’ imprisonment.

Each of the offenders has been in custody since their arrest on 3 April 2014.

The agreed statements of facts in relation to Ms Jin and Mr Li are essentially the same.

The facts

Mr Li rented a house at Evatt in the Australian Capital Territory in another name for a 12 month period from 1 January 2014. Police executed a search warrant on those premises on 3 April 2014. On the ground floor they located a sophisticated hydroponic set up that was being used to cultivate approximately 371 cannabis plants. The plants were at different stages of growth. The growing arrangement included heaters, fans, timers and hosing via which water and nutrients were provided to the plants.

In addition to the plants, police located plastic bags containing dried cannabis and a suitcase containing a substantial quantity of Australian currency. They ascertained that the electricity metre box was being bypassed insofar as the growing area was concerned, although electricity was being metered insofar as it was supplying the upstairs residential flat.

Mr Li asserted that he had purchased the seeds and grown the plants without really knowing what they were, although he had been told that he could make money by selling the flowers. I do not accept that. The offenders must have known that they were growing cannabis…

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; R v Jin

Details

AGLC: R v Li; R v Jin [2014] ACTSC 304
Case: [2014] ACTSC 304
Decision Date: 23 September 2014

CaseChat Overview and Summary

The appellants, Mr Li and Ms Jin, were convicted of drug-related offences and appealed against their sentences. The court of appeal was tasked with reviewing the sentences imposed by the lower court. The primary legal issues for the court were whether the sentences were manifestly excessive and whether the lower court had taken into account all relevant mitigating factors, including the appellants' early guilty pleas and the appellant Mr Li's terminal illness.

The court found that the lower court had adequately considered the appellants' early guilty pleas and the fact that Mr Li had a terminal illness. However, the court held that the lower court had not adequately considered the appellants' role as co-offenders and the potential for a discount in their sentences for this reason. The court also found that the lower court had not adequately considered the appellants' prospects for rehabilitation and reintegration into society. The court noted that both appellants had shown remorse and had made efforts to address their drug addiction. The court held that these factors should have been given greater weight in the sentencing process.

The court allowed the appeals and ordered that Mr Li be sentenced to two years and seven months’ imprisonment, suspended from 26 September 2014, and that Ms Jin be sentenced to time served to 26 September 2014. The court also ordered that both appellants be deported upon release from prison.

Orders

Orders of the court

(1) Mr Li sentenced to 2 years 7 months’ imprisonment, suspended from 26 September 2014; and

(2) Ms Jin sentenced to time served to 26 September 2014.

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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