Li v Attorney General for New South Wales

Relevant law

1. Section 79(1) of the Act confers a discretion on the Supreme Court to direct that an inquiry be conducted by a judicial officer into a conviction or sentence, or to refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.
2. One of the specified conditions in s 79(2) must be fulfilled for the Court to exercise the discretionary power conferred by s 79(1), being that "it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case." Even if there is an appearance of a doubt or question, the Court retains a discretion under s 79(1) not to direct an inquiry.
3. An additional discretionary power is conferred by s 79(3) of the Act, which provides that the Court may refuse to consider or otherwise deal with an application, and sets out non-exhaustive circumstances in which the Court may do so. These include where it appears to the Court that a matter has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or has previously been dealt with under Part 7, and the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
4. Authority on what constitutes special facts or special circumstances is limited. In Milat, Ivan Robert Marko - Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 at [14]-[22], Johnson J discussed the history and operation of s 79(3). His Honour said at [20] that the balance being struck by s 79(3) involves "an appropriate remedial process for applications for a post-conviction inquiry and the need to guard against 'the waste of judicial resources that can flow from repeated unmeritorious applications for inquiries'." In Duncan, Paul Parepano - Application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 847, which concerned the effect of a judge falling asleep during a criminal trial, Button J said at [75] that "the phenomenon of a judge sleeping in a trial by jury is thankfully sufficiently rare for it to be regarded as 'special'."
5. As the examples of circumstances in which the Court may refuse to consider or otherwise deal with an application set out in s 79(3) make plain, the Part 7 procedure is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted. Nor is it an opportunity, in a sense, to run a trial again on paper with the ultimate submission that acquittal should result.

"Doubt or question"

1. In Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 [2003] HCA 28 at [134], Heydon J observed that: "... 'doubt' is one thing. A 'question' suggests a less intense mental state. Particular information can stimulate a question without any particular answer being pointed to. A breakdown in some aspect of the trial capable of bearing on the accuracy of the jury's conclusion that the accused was guilty in fact can stimulate a question about whether the accused was guilty in fact ... "
2. The statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question. It is the satisfaction of the Court that it "appears" that the condition is satisfied which is critical. The Court does not need to be satisfied that a doubt or question is well founded to order an inquiry, as that is a matter for the inquiry.
3. In Varley v Attorney General of New South Wales (1987) 8 NSWLR 30 at 48, it was said, adopting the language of Nagle CJ at CL that "the section envisages the placing of any material before a Judge of the Supreme Court ... which might cause him [or her], for want of a better word 'unease' in allowing a conviction to stand". That statement has been consistently applied to the consideration of applications under s 78, even after the previously applicable s 475 and the associated regime in the Crimes Act 1900, were replaced by the current provisions in Part 7.
4. However, in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCCA 383 at [65], Basten JA (with whom the remainder of the five-member bench agreed) referred to the sense of disquiet or unease referred to in Varley, and held that such language does not assist, stating that there "is no purpose served by adopting other words than the statutory language of 'doubt or question'."

"Mitigating circumstances"

1. In Sinkovich, Basten JA (with whom the other members of the Court agreed) said that: "[31] Any procedural error which possibly gave rise to a more severe sentence than should properly have been imposed, may found a doubt or question as to a mitigating circumstance; that is, the failure to sentence the prisoner on a basis which would have led to a less severe sentence than that imposed. [32] If that reasoning is correct, there is no basis in the language to exclude errors of law: indeed, it will often be easier to identify a miscarriage of justice which has resulted from an error of law than one resulting from a mistake as to some matter of fact."
2. His Honour's comments suggest that demonstrating that a legal error may have been committed by the District Court in the exercise of the sentencing discretion does not necessarily mean that this Court will be satisfied that there is the appearance of a doubt or question as to mitigating circumstances. It is necessary for the Court to be satisfied that the error possibly gave rise to a more severe sentence.
3. A justifiable sense of grievance arising from parity issues will be sufficient to raise the appearance of a doubt or question as to mitigating circumstances of a case.

Submissions

1. Mr Li does not clearly articulate the apparent doubt or question as to mitigating circumstances in this case, nor does he identify any specific legal error. This may be the result of the fact that he is legally unrepresented, and English is not his first language. His lack of clarity therefore necessitates a degree of interpretation to determine the bases of the application.
2. Mr Li appears to raise three main areas of complaint: 1. reliance by the sentencing judge on an agreed statement of facts; 2. findings made by the sentencing judge based on those agreed facts as to Mr Li's role in the criminal enterprise; and 3. issues of parity arising out of the alleged mis-characterisation of Mr Li's role in the criminal enterprise by the sentencing judge, when compared to his co-offender.

Reliance by the sentencing judge on the agreed statement of facts

1. Mr Li appears to take issue with the agreed facts relied on by the sentencing judge due to the circumstances in which the agreed facts were signed. Specifically, Mr Li states that he had a short amount of time to read them, that his language skills were not sufficient properly to comprehend or understand them and that he did not receive legal advice about them.
2. However, the statement of agreed facts was signed by Mr Li on 30 May 2011, above a certification stating "I have read and understood this 14 page documents [sic] and I agree that it is true and correct. I have had legal advice about this matter from a Barrister".
3. Further, in the course of giving evidence at the sentencing hearing on 20 July 2012, the following exchange occurred between Mr Li and his counsel: "Q. In relation to this matter and if I could call it the New South Wales matter, you have signed an agreed statement of facts, correct? A. Yes, correct. Q. You've read that several times haven't you? A. Yes, correct. Q. You've discussed that with lawyers haven't you? A. Yes, I did. Q. You agree that those facts are true and correct? A. Yes, I agree."
4. Earlier in the hearing, Mr Li was asked whether he was comfortable enough to give evidence without an interpreter and he said that he was.
5. Mr Li's assertions relating to unfairness surrounding his adoption of the statement of agreed facts are difficult to sustain in circumstances where the statement of agreed facts was signed in May 2011, tendered at a hearing in July 2012 and expressly adopted as true and correct in oral evidence given by him at that hearing, where he also expressly disavowed any need for an interpreter.
6. In any event, Mr Li appears to have conceded this point in his response to the Attorney General's submissions. He said, "I stress that the agreed fact for sentence is not intend to dispute. I accepted and agreed the content".

Findings made by the sentencing judge based on those facts as to Mr Li's role in the criminal enterprise

1. Mr Li takes issue with a number of findings made by the sentencing judge in reliance on the statement of agreed facts, which led to her Honour's conclusion that Mr Li was at a higher level than Mr Koh in the hierarchy of the criminal enterprise. It appears that Mr Li's primary areas of concern are the following: 1. his role in the registration of the business; 2. his role in obtaining the lease of the factory unit and having possession of the key to that unit; 3. the mobile phones found in his possession; and 4. Mr Koh driving the van to Melbourne.
2. Mr Li also appears to take issue with the reference by the sentencing judge to Mr Koh's record of interview.
3. There does not appear to me to be any apparent doubt or question as to mitigating circumstances in this case raised by Mr Li's submissions about the findings of the sentencing judge in this respect.
4. As to Mr Koh's record of interview, this was tendered at the sentencing hearing by Mr Li's counsel for the purpose of demonstrating to her Honour "the type of person Mr Koh was and the reason that he came out to Australia. That's primarily to deal with that issue of his role and his background". The sentencing judge referred to that record of interview and noted that "much of what Mr Koh said to police in that interview does not bear out the contention that Mr Li was merely acting as a translator and driver to Mr Koh". Her Honour would appear clearly to have been rejecting the submission made on Mr Li's behalf that the record of interview supported a view that he was lower in the criminal hierarchy than Mr Koh. It does not in any event appear from the remainder of the remarks on sentence that her Honour relied on Mr Koh's record of interview as a basis on which positively to find that Mr Li occupied a higher position in the criminal hierarchy than Mr Koh. That finding was based on the material set out above which was, in turn, taken from the agreed facts.
5. It is difficult to see how any apparent doubt or question arises from the sentencing judge's references to Mr Koh's record of interview in circumstances where it was tendered in support of Mr Li's case on sentence, and her Honour expressly rejected his submission about what it demonstrated to be his role in the enterprise in question.
6. To the extent that Mr Li suggests that he did not receive competent legal representation at his sentencing hearing, he has not pointed to any conduct by his counsel at trial that could be characterised in any manner other than as a rational step taken, or not taken, in his best interests at trial. The relevant principles applicable to incompetence of counsel were summarised recently in Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4 at [31] by Macfarlan JA. It is accepted that Mr Li does not have to satisfy the test required for successful appellate intervention due to incompetence of counsel in order to meet the requirements of s 79(2), as all that is required is the appearance of a doubt or question. However, Mr Li has not raised any matters that rise even to the level of apparent irrationality in the way defence counsel conducted his case on sentence. I note that incompetence of counsel was not raised by Mr Li as a ground of appeal in the Court of Criminal Appeal.
7. As to his submissions about the sentencing judge's findings, the starting point is that the trial judge's recitation of the facts was drawn almost entirely from the statement of agreed facts. Otherwise, the matters dealt with by her Honour were inferences drawn from those facts. In Mr Li's appeal to the Court of Criminal Appeal, Barr AJ described what her Honour did in the following way: "[28] What her Honour was doing is clear from her stated intention to assess his role and level from what the applicant did. It was on those findings that her Honour concluded, in the passage I have extracted above, that there was a basis to conclude that the applicant's position was slightly superior to Koh's. [29] ... Her Honour could not have come to the conclusion that the applicant occupied a superior position without finding what he had done. Moreover the evidence would not have enabled her Honour to find out more about his position in the hierarchy than that it was above Koh's."
8. His Honour earlier described at [16] the process undertaken by the sentencing judge as weighing "the relative objective seriousness of the criminality of the applicant and Koh".
9. In Mulato v R [2006] NSWCCA 282, Spigelman CJ held at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."
10. During the sentencing hearing, Mr Li's counsel said that there was "an agreed statement of facts, it's not quibbled with. There is obviously an issue in relation to roles or an interpretation of roles which I will go into with your Honour because that is a situation where parity looms large." That statement was followed by submissions to the effect that it was "open" to her Honour to find that Mr Li played a smaller role than Mr Koh. It is significant that Mr Li's counsel acknowledged that the respective roles of the co-offenders were a matter of interpretation. It demonstrated his correct understanding that this was an issue within the discretion of the primary judge. Equally, each step in the reasoning to a conclusion on the co-offenders' respective roles, including inferences drawn from the agreed facts, was a matter within her Honour's sentencing discretion.
11. Taking all of the above into account, Mr Li's submissions relating to particular findings made and inferences drawn by the sentencing judge do not demonstrate the appearance of a doubt or question as to any mitigating circumstances in the case.

Issues of parity arising out of the alleged mischaracterisation of Mr Li's role in the criminal enterprise by the sentencing judge, as compared to the co-offender

1. Mr Li has submitted that if his version of the facts is accepted, his role in the criminal enterprise was at a lower level than Mr Koh's. One reason he gives in support of that submission is that he was sentenced in the Victorian proceedings on the basis that there was no difference between the roles of Mr Li and Mr Koh for the offence prosecuted in Victoria. In fact, the Crown appears to have conceded in the Victorian proceedings that Mr Li and Mr Koh played a similar role in relation to the Victorian offence.
2. These submissions do not demonstrate the appearance of a doubt or question as to mitigating circumstances in the case for the following reasons.
3. First, the arguments as to parity rely on acceptance of Mr Li's version of the facts. If it is accepted that there is no doubt or question apparent from the use of the statement of agreed facts by the sentencing judge, and her Honour's assessment of Mr Li's role in the hierarchy of the criminal enterprise, then there can be no doubt or question arising simply because Mr Li now asserts that some other conclusion ought to have been reached by the sentencing judge based on those facts.
4. Secondly, no doubt or question about mitigating circumstances in the New South Wales proceedings is apparent from a comparison with the Victorian proceedings. Mr Li asserts that the Victorian sentencing judge noted that the "Crown has conceded that [he] and the co-accused played a similar role in this trafficking". Further, the Crown stated expressly in the Victorian proceedings that there was "nothing in the summary of facts about the events in Sydney. The Crown case has always been that [Mr] Li registered the business name using that to rent the factory and indeed paid the first month's rent. All those are matters for another day". These two snippets from the Victorian proceedings demonstrate that those proceedings were for a different offence to the New South Wales proceedings, with different elements, and based on different evidence. This is reflected in the Court of Criminal Appeal's finding that "[Mr Li's] knowingly taking part in the supply of the drug at Castle Hill could not comprehend and reflect the criminality involved in the events that took place in Victoria": Li v R at [46].
5. In such circumstances, there is no inconsistency or double-standard demonstrated by an acceptance that Mr Li and Mr Koh had similar roles for the trafficking offence in Victoria, but different roles for the supply offence in New South Wales. That remains the case even where evidence relied on in the Victorian proceedings is also relied on in the New South Wales proceedings, along with other evidence not relied on in the Victorian proceedings.
6. As to the issue of parity more generally, in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [32], a majority of the High Court (French CJ, Crennan and Kiefel JJ) held: "A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. ... Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed."
7. In the present case, the disparity between the sentences imposed is neither marked, nor does it give rise to any appearance of injustice. The sentencing judge imposed the following sentences: Offender NSW Sentence (prior to discount for early guilty plea) NSW Sentence NSW NPP Aggregate sentence (with Victorian offence) Aggregate NPP Li 21 years, 8 months 19 years, 12 years, 21 years, 14 years, 6 months 3 months 9 months 6 months Koh 22 years 16 years, 11 years, 18 years, 13 years, 6 months 10 months 6 months 10 months

1. The sentencing judge considered Mr Li's subjective circumstances to be "more favourable overall" when compared to Mr Koh. Her Honour determined, having weighed the similarities and differences between Mr Li and Mr Koh, that the starting point for each sentence should be the same. Mr Koh received a discount of 25 percent for an early guilty plea whereas Mr Li only received a discount of 10 percent. This was reflected in the difference in aggregate sentences. Prior to the application of the discount, Mr Koh's aggregate sentence was 22 years whereas Mr Li's aggregate sentence was slightly lower at 21 years and 8 months. Both Mr Li and Mr Koh received a modest adjustment for special circumstances. The sentences imposed in Victoria also appear to have been affected by differences in the timing of pleas by the two offenders.
2. In the Court of Criminal Appeal, Barr AJ considered that: "[47] [the applicant's] second submission really amounted to an argument that her Honour's sentence was excessive, given the totality of the criminality comprehended by the two offences. In my opinion it fell well within the limits of her Honour's sentencing discretion. [48] In accumulating the applicant's sentence by 2 years 3 months and Koh's by 2 years, her Honour's intention was to allow the distinction the Victorian Court had drawn to continue to have some effect. In my opinion her Honour was entitled to do so. In the result her Honour discriminated in a way that did justice to both offenders."
3. It does not in all of these circumstances appear to me that Mr Li has identified the appearance of a doubt or question as to mitigating circumstances in the case arising out of a comparison with the sentence imposed on Mr Koh.

Conclusion

1. Mr Li has not identified the appearance of any error by the sentencing judge in the sentence imposed upon him, or any other basis on which the appearance of a question or doubt as to mitigating circumstances arises in respect of his case. Accordingly, the power of the Court to direct an inquiry or refer to the case to the Court of Criminal Appeal is not enlivened.

Orders

1. In the circumstances, Mr Li's application is dismissed.

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