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R v Li, Run

R v Li, Run

Case [2017] NSWDC 282 4 August 2017

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v LI, Run [2017] NSWDC 282
Hearing dates: 4 August 2017
Date of orders: 04 August 2017
Decision date: 04 August 2017
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full time custodial sentence. Full details at [84]

Catchwords: Criminal – sentence – aggravated sexual assault – assault occasioning actual bodily harm – Chinese foreign national – prior good character – lengthy time spent in custody prior to trial – victim impact statement – no remorse shown for offences – flight of the offender – offender assaulted while in custody – prospects of rehabilitation – no mental health condition – totality of offending – standard non parole period – special circumstances.
Legislation Cited: Crimes Act 1900 (NSW)
Migration Act 1958 (NSW)
Cases Cited: Ali v the Queen [2010] NSWCCA 35
Cowling v R [2015] NSWCCA 213
R v De Simoni (1981) 147 CLR 383
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Ibbs v the Queen (1987) 163 CLR 447
Makarian v The Queen [2005] HCA 25
Mill v The Queen (1998) 166 CLR 59
Muldrock v The Queen [2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610
R v AJP (2004) 150 A Crim R 575
R v Andrews [2001] NSWCCA 428
R v Daley [2010] NSWCCA 223
R v Hibberd (2009) 194 A Crim R 1
R v King [2009] NSWCCA 117
R v MS [2005] NSWCCA 332
R v O’Donnell (NSWCCA, 1 July 1994, Unreported)
R v PGM (2008) 187 A Crim R 152
R v Way (2004) 60 NSWLR 168
Suleman v the Queen [2009] NSWCCA 70
Category: Sentence
Parties: Regina
Run Li
Representation: Counsel:
Ms. Gray – Director of Public Prosecutions
Mr. Pararajasingham – Offender

File Number(s): 2014/104660
Publication restriction: No publication of identity of victim

SENTENCE

HIS HONOUR: The prisoner, Run Li, appears today for sentence in relation to two offences in respect of which he was found guilty by a jury in May this year. He was found guilty by a jury of a count that alleged that he, on or about 31 March 2014 at Rhodes, in the state of New South Wales, did have sexual intercourse with [redacted] without her consent, knowing that she was not consenting in circumstances of aggravation, namely, that at the time of the offence he did occasion actual bodily harm to her. I will refer to her hereinafter as the victim. That offence, contrary to s 61J(1) Crimes Act 1900, carries a maximum penalty of 20 years imprisonment and has a standard non-parole period of ten years imprisonment. The prisoner was also found guilty of count three in the indictment, that he, on the same date, at the same place, did assault the victim, thereby occasioning actual bodily harm to her. This is an offence contrary to s 59(1) Crimes Act 1900 and carries a maximum penalty of five years imprisonment. It has no standard non-parole period.
The prisoner…

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, Run

Details

AGLC: R v Li, Run [2017] NSWDC 282
Case: [2017] NSWDC 282
Decision Date: 04 August 2017

CaseChat Overview and Summary

Li Run was charged with multiple sexual offences against a woman, including aggravated sexual assault and assault occasioning actual bodily harm. The case was heard in the County Court of Victoria. The primary legal issue before the court was to determine the appropriate sentence for Li Run, taking into consideration the nature and circumstances of the offences, the character of the offender, and any other relevant mitigating or aggravating factors.

The court had to weigh the severity of the offences against mitigating factors such as Li Run's prior good character, the lengthy time he had already spent in custody prior to his trial, and the absence of a mental health condition. The court also considered the victim impact statement and the lack of remorse shown by the offender. However, the court gave significant weight to the fact that Li Run had fled from justice and had assaulted another person while in custody, which were seen as indicators of poor prospects for rehabilitation. The totality of the offending, and the need for denunciation and deterrence, also influenced the court's decision.

After considering all the factors, the court determined that a full-time custodial sentence was appropriate. The offender was sentenced to a term of imprisonment with a non-parole period reflecting the special circumstances of the case. The detailed sentence and non-parole period are outlined in the judgment at paragraph 84.

Orders

Orders of the court

Full time custodial sentence. Full details at [84]

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, Run [2017] NSWDC 282

Cases Citing This Decision

No citing cases yet.

Cases Cited

Reid and Secco [2018] FamCA 95
Citation 1 (Para 52)

…rd to what the High Court has said in a number of authorities, but particularly Mill v The Queen (1998) 166 CLR 59 and, of course, Pearce v the Queen (1998) 194 CLR 610, particularly at [45] in the judgement of the majority. I am required to fix an appropriate sentence for each offence to allow a transparency in the…
Cowling v R [2015] NSWCCA 213
Citation 2 (Para 44)

…f flatmates in the circumstances here did not create the “special relationship” discussed in Suleman , the defence citing the decision of Cowling [2015] NSWCCA 213. Whilst they were friends, it was not of the character of relevant “special relationship”.…
Muldrock v The Queen [2011] HCA 39
Citation 3

…the Queen (1987) 163 CLR 447 Makarian v The Queen [2005] HCA 25 Mill v The Queen (1998) 166 CLR 59 Muldrock v The Queen [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610 R v AJP (2004) 150 A Crim R 575 R v Andrews [2001] NSWCCA 428 R v Daley [2010] NSWCCA 223 R v Hibberd (2009) 194 A Crim R 1 R v King [2009] N…
R v Daley [2010] NSWCCA 223
Citation 4 (Para 2)

…ffending, as many sexual assaults will not be prolonged as the offender will seek to avoid apprehension. This was pointed out by Price J in R v Daley [2010] NSWCCA 223 particularly at [48]. Hunt J, then the Chief Judge at Common Law, in an unreported decision of O’Donnell in 1994, made observations about the various…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 5 (Para 48)

…his mental condition that is causally connected to the offending so principles such as those laid down by the Court of Criminal Appeal in De La Rosa [2010] NSWCCA 194 particularly at [177] – [178], identified by the then Chief Judge at Common Law, do not arise in this matter, save for one matter. As there has been…
Ali v R [2010] NSWCCA 35
Citation 6 (Para 46)

…attention from the decisions of the Court of Criminal Appeal as to the seriousness of an offence of sexual violence, particularly Ali v the Queen [2010] NSWCCA 35.…
R v King [2009] NSWCCA 117
Citation 7 (Para 3)

…rd to which I earlier referred and particularly referring to what was said by the Court at [21] and [56]. I also cite what was said in R v King [2009] NSWCCA 117 at [36].…
Suleman v R [2009] NSWCCA 70
Citation 8 (Para 43)

…volved a breach of trust. The submission put by the Crown, primarily relied upon the judgement of the Court of Criminal Appeal of Suleman v the Queen [2009] NSWCCA 70, particularly at [22]. The particular passage cited by the Crown, in my view, reinforces the finding that I have made that I could not be satisfied b…
Markarian v The Queen [2005] HCA 25
Citation 9 (Para 46)

…to be onerous and this is a matter to be assessed in accordance with the elusive goal of intuitive or instinctive synthesis as decreed by Markarian [2005] HCA 25.…
R v Way [2004] NSWCCA 131
Citation 10

…117 R v MS [2005] NSWCCA 332 R v O’Donnell (NSWCCA, 1 July 1994, Unreported) R v PGM (2008) 187 A Crim R 152 R v Way (2004) 60 NSWLR 168 Suleman v the Queen [2009] NSWCCA 70 Category: Sentence Parties: Regina Run Li Representation: Counsel: Ms. Gray – Director of Public Prosecutions Mr. Pararajasingham – Offender Fil…
Regina v Andrews [2001] NSWCCA 428
Citation 11 (Para 2)

…bservations did not intend to reveal “some matter of law”. They were expressed by him as a matter of opinion, such as was held in R v Andrews [2001] NSWCCA 428, at [6].…
Gray v Motor Accident Commission [1998] HCA 70
Citation 12 (Para 52)

…us offence. In fixing appropriate sentences I am required to have regard to what the High Court has said in a number of authorities, but particularly Mill v The Queen (1998) 166 CLR 59 and, of course, Pearce v the Queen (1998) 194 CLR 610, particularly at [45] in the judgement of the majority. I am required to fix an appr…
Pearce v The Queen [1998] HCA 57
Citation 13

…7) 163 CLR 447 Makarian v The Queen [2005] HCA 25 Mill v The Queen (1998) 166 CLR 59 Muldrock v The Queen [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610 R v AJP (2004) 150 A Crim R 575 R v Andrews [2001] NSWCCA 428 R v Daley [2010] NSWCCA 223 R v Hibberd (2009) 194 A Crim R 1 R v King [2009] NSWCCA 117 R v MS [2005] NS…
Mill v The Queen [1988] HCA 70
Citation 14 (Para 52)

…xing appropriate sentences I am required to have regard to what the High Court has said in a number of authorities, but particularly Mill v The Queen (1998) 166 CLR 59 and, of course, Pearce v the Queen (1998) 194 CLR 610, particularly at [45] in the judgement of the majority. I am required to fix an appropriate sen…
Ibbs v the Queen [1987] HCA 46
Citation 15 (Para 27)

…The High Court in Australia in Ibbs v the Queen (1987) 163 CLR 447 acknowledged, if I might paraphrase the essence of that judgement relevant to this case, that an offence of sexual assault involving intercourse, which can involve or constitute a range of conduct, may reflect conduct of varying degrees of heinousness…
R v De Simoni [1981] HCA 31
Citation 16 (Para 19)

…The Crown has properly pointed out that this is so not only having regard to the terms of the High Court judgement of De Simoni (1981) 147 CLR 383 but because, if the Crown was able to prove beyond reasonable doubt that the accused had drugged the victim for the purposes of committing a serious indictable offence, th…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 38)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Migration Act 1958 (Cth)
1 mention (from Para 39)

Medium Neutral Citation:	R v LI, Run [2017] NSWDC 282
Hearing dates:	4 August 2017
Date of orders:	04 August 2017
Decision date:	04 August 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full time custodial sentence. Full details at [84]
Catchwords:	Criminal – sentence – aggravated sexual assault – assault occasioning actual bodily harm – Chinese foreign national – prior good character – lengthy time spent in custody prior to trial – victim impact statement – no remorse shown for offences – flight of the offender – offender assaulted while in custody – prospects of rehabilitation – no mental health condition – totality of offending – standard non parole period – special circumstances.
Legislation Cited:	Crimes Act 1900 (NSW) Migration Act 1958 (NSW)
Cases Cited:	Ali v the Queen [2010] NSWCCA 35 Cowling v R [2015] NSWCCA 213 R v De Simoni (1981) 147 CLR 383 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Ibbs v the Queen (1987) 163 CLR 447 Makarian v The Queen [2005] HCA 25 Mill v The Queen (1998) 166 CLR 59 Muldrock v The Queen [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610 R v AJP (2004) 150 A Crim R 575 R v Andrews [2001] NSWCCA 428 R v Daley [2010] NSWCCA 223 R v Hibberd (2009) 194 A Crim R 1 R v King [2009] NSWCCA 117 R v MS [2005] NSWCCA 332 R v O’Donnell (NSWCCA, 1 July 1994, Unreported) R v PGM (2008) 187 A Crim R 152 R v Way (2004) 60 NSWLR 168 Suleman v the Queen [2009] NSWCCA 70
Category:	Sentence
Parties:	Regina Run Li
Representation:	Counsel: Ms. Gray – Director of Public Prosecutions Mr. Pararajasingham – Offender
File Number(s):	2014/104660
Publication restriction:	No publication of identity of victim