Li v Attorney General for New South Wales

Court of Appeal (NSW)|2020-09-22|Before: Macfarlan JA, Meagher JA, McCallum JA, Button J

Background

On 18 December 2006, Victorian police observed the applicant and Mr Koh standing adjacent to a white van stalled near an intersection in Geelong. As police approached, the applicant walked away and entered a nearby Toyota Camry. When followed to the vehicle by police, the applicant tried to drive away, but stopped when instructed to do so. The applicant denied knowing Mr Koh, claiming to have stopped to help him when his van broke down.
When police searched the van, they found 385 kg of a substance later determined to be the prohibited drug known as MDP2P, an MDMA (known informally as ecstasy) precursor and a prohibited drug in its own right, and a rental agreement for the van in Mr Koh's name. A search of the Camry revealed a silver key, a rental agreement for the Camry in the applicant's name, and two mobile phones (in addition to the mobile in the applicant's possession). The applicant and Mr Koh were arrested and charged in Victoria with trafficking a commercial quantity of a drug of dependence.
On 3 January 2007, NSW police performed a search of a factory unit in Castle Hill. The large roller door to the unit was locked from the inside by a padlock which, it was later found, could be opened by the silver key found in the Camry. Inside the premises was 2,272.612 kg of MDP2P.
Mr Koh, a Singaporean national, had arrived in Sydney from Malaysia on 11 December 2006. That afternoon, the applicant and Mr Koh visited the Department of Fair Trading at Hurstville, where Mr Koh, with the applicant's assistance, filled out an application form to register a business name, Glory Trading Company. The applicant paid the $137 registration fee, but the name given as that of the person lodging the application was Mr Koh's.

The proceedings in Victoria

The Victorian proceedings took place well in advance of those in NSW. Mr Koh entered a plea of guilty on 12 November 2007, and received a sentence of 6 years' imprisonment with a 4 year non-parole period. The applicant initially pleaded not guilty to the Victorian offence, changing his plea to guilty on 1 August 2008 after 6 days of hearing in late July 2008.
Those 6 days were taken up entirely by pre-trial issues, principally challenges to the admissibility of documentary and oral evidence relating to the applicant's offending in NSW (the "Sydney evidence") and "Basha hearings" relating to that evidence (referring to R v Basha (1989) 39 A Crim R 337). The prosecution intended to rely on the Sydney evidence to "negate the possibility of an innocent purpose" in the applicant's accompanying Mr Koh to Victoria on 18 December 2006, and as informing "the likelihood that the two men were acting in concert". The transcript of the hearing over those 6 days records a number of comments made by the County Court Judge, Judge Gullaci, concerning the possible admissibility of the Sydney evidence. It also records submissions by the defence counsel, Mr Matthews, concerning whether inferences could be drawn from the Sydney evidence as to the applicant's knowledge of, and degree of involvement in, the supply of prohibited drugs.
On the sixth day of the preliminary hearing, 29 July 2008, there had been no "full ruling" on the applicant's objections to the admissibility of the Sydney evidence, they being that it was too speculative to establish beyond reasonable doubt that the applicant was knowingly involved with the storage of drugs in the factory unit, as was said to be necessary, and that it did not meet the tests for the admissibility of "propensity" evidence, as it was said to be. At that time there had been only a small number of minor rulings on discrete items of evidence, including the entry card Mr Koh handed to an immigration official on his arrival in Sydney and what was described as the "smell evidence". As the applicant's plea may have acknowledged, the objections to the admissibility of the Sydney evidence appeared unlikely to be upheld. In the course of argument on 25 July 2008, the fourth day of the hearing, Judge Gullaci made the following observation, no doubt for the assistance of defence counsel: Well, as I keep saying to you, having heard the evidence, having listened to the debates, it seems to me that the evidence is cogent and it's admissible and it's probative. It's probative in the Pfennig sense and under [s] 398A. But of course I haven't come to a final view about it.
On the day of his plea, 1 August 2008, the applicant was sentenced to a term of imprisonment of 6 years 6 months with a non-parole period of 4 years 6 months. The sentencing judge noted that for "the purposes of [his] plea", the Victorian prosecutor did not suggest there was any difference between the roles of the applicant and Mr Koh, and sentenced the applicant on that basis.

The proceedings in NSW

On 12 November 2009, the applicant and Mr Koh were transferred into the custody of Corrective Services NSW. They were charged with the NSW offences on 27 January 2010. Mr Koh participated in an ERISP on the same day, and pleaded guilty on 25 November 2010. Advised that the Crown proposed to call Mr Koh in his trial, the applicant entered a plea of guilty and was sentenced on 10 August 2012.
The evidence on sentence was the agreed statement of facts and the transcript of Mr Koh's ERISP. The latter was tendered on behalf of the applicant, and was said to show that he acted merely as a translator and driver for Mr Koh. The sentencing judge did not accept that contention. Rather, assessing the applicant's "role and level of participation" by reference to what the agreed facts showed he "actually did", her Honour concluded that "there is a basis then to conclude that Mr Li was in a slightly more superior position to Mr Koh in the hierarchy of this criminal drug organisation".
After considering the subjective features of the applicant's offending, her Honour had regard to the sentence imposed on Mr Koh, "in light of the parity principle". Observing that the applicant's "role and level of participation" was greater than Mr Koh's, though not substantially, and that his subjective features were more favourable, her Honour adopted the same starting point on sentence. The applicant received a 10% discount for the utilitarian value of his plea (much less than the 25% discount granted for Mr Koh's earlier plea). An appeal to the Court of Criminal Appeal was dismissed: Li v R [2014] NSWCCA 341.
The applicant's first s 78 application was dealt with by Harrison J: Li v Attorney General for New South Wales [2018] NSWSC 674. Harrison J identified the applicant's "three main areas of complaint" as being with (a) the sentencing judge's reliance on the agreed statement of facts; (b) her Honour's findings as to the applicant's role based on those facts; and (c) issues of parity arising out of the allegedly erroneous findings concerning his role. His Honour concluded that none of those areas of complaint raised the appearance of a doubt as to any mitigating circumstance and dismissed the application. The application for judicial review of that decision was dismissed by majority: Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95.

The application before Button J

The s 78 application before Button J was said to involve three grounds: "Procedural fairness at NSW court" (ground 1); "Evidence misuse and inappropriate of evidence process at NSW court" (ground 2); and "Erred in apply the parity principle" (ground 3). Although the primary issue before this Court is whether Button J properly addressed the substance of ground 2, it is nevertheless necessary to explain the three grounds in some detail, bearing in mind that they are partially repetitive of each other and in parts difficult to follow.
Ground 1 related to an allegation of procedural unfairness by the sentencing judge in drawing inferences from the agreed statement of facts as to the applicant's role. While the applicant expressly accepted the accuracy of the agreed statement of facts, he submitted that the inferences drawn from those facts as to his role had "basically no justification" and were procedurally unfair, in that he was denied the opportunity to lead evidence demonstrating his relatively minor role.
Ground 2 concerned the "misuse" in the NSW sentencing proceedings of "evidence" of the applicant's participation in the offence. That there had been misuse was said to be shown by the treatment in the Victorian County Court of the evidence of the applicant's offending in NSW. Ultimately, the applicant contended that the inference drawn by the sentencing judge as to his role depended on a misuse of the "evidence" underlying or reflected in the agreed facts, and could not have been drawn beyond reasonable doubt.
That proposition was said to be demonstrated by five "areas of concern". Each area of concern related to a matter on which Woodburne DCJ had relied when making an assessment of the applicant's role and level of participation in the NSW offence. They were: (1) the registration of the business name; (2) the lease of the factory unit; (3) the possession of the key to the unit; (4) the three mobile phones discovered by Victoria in the applicant's possession or in the Camry; and (5) the circumstances of the applicant and Mr Koh's journey from Sydney to Victoria.
In relation to each area of concern, the applicant attempted to show that the agreed facts could not support the finding made by Woodburne DCJ. In order to do so, he made extensive reference to the transcript of the preliminary hearing in Victoria. For the most part, those references were to the submissions of his counsel in the Victorian proceedings, as to alleged difficulties with drawing any inferences from the evidence which came to be reflected in the agreed facts, and to comments made during the hearing by Judge Gullaci as to the admissibility of parts of the evidence or directions which might be given about its use. He submitted, for instance, that the call charge records of the phones found in the Camry had been ruled inadmissible in the course of that hearing. (In fact, the passages of transcript referred to by the applicant demonstrate that no such ruling was made.)
In relation to the key to the factory unit, the applicant also pointed to the existence of evidence which might qualify the inference drawn from the agreed facts. He extracted part of the transcript of the voir dire cross-examination of a Victorian detective in which the detective admitted that the key found in the Camry on 18 December 2006 was not attached to a "combination tag", and to that extent did not resemble the key handed to the applicant by Mr Hoyle on 15 December. The applicant appeared to submit that this material cast doubt on the sentencing judge's conclusion that the applicant had retained possession of the original key, which her Honour regarded as suggestive of a greater role, by raising the possibility that the key found in the Camry was only a copy.
The applicant's submissions on ground 3, in terms directed to the parity principle, commenced by making two points. The first was that in sentencing the applicant, the Victorian County Court accepted the concession of the Victorian prosecutor that the applicant and Mr Koh had equivalent roles (which the applicant says were on the lower end of the hierarchy). The second was that the Sydney evidence was not relied on by the Victorian prosecution in the Victorian sentencing proceedings. The applicant submits that this reflected a concession that the evidence lacked probative value.
Finally, having regard to those two points and to his submissions on grounds 1 and 2, it was said that the sentencing judge should have concluded that the applicant's role was lesser than that of Mr Koh, and that her Honour erred in adopting the same starting point in sentencing the two offenders.
At the conclusion of his written submissions, the applicant stated 12 questions to be answered by the Attorney General and Button J. His reply submissions, filed on 4 November 2019, restated those 12 questions and added a further question. For the most part, those questions compared the treatment of evidence or findings of fact made in Victoria with those in NSW. They reflected, but did not add to, the applicant's submissions directed to each of his three grounds.
It is necessary at this point to explain the applicant's grounds of review in this Court, and only then to turn to Button J's reasons for dismissing his application.

The application to this Court

In his reply submission and in oral argument, the applicant accepted the respondent's summary of his grounds of judicial review, each of which (save the fourth) is said to relate to error amounting to a constructive failure to exercise jurisdiction. Those grounds were:

That both the Attorney General and Button J failed to address part of ground 2 ("Evidence misuse and inappropriate of evidence process in NSW court").
That both the Attorney General and Button J failed to consider and respond to the 13 questions posed in the applicant's reply submissions.
That Button J failed to address a new matter raised in the reply submissions, namely that the evidence adopted by the Crown in the NSW sentencing proceedings had been ruled inadmissible in Victoria.
That Button J's reasons were inadequate.

To the extent the applicant's grounds of review relate to any alleged omission of the Attorney General, it suffices to note that an application under s 78 is made to, and to be considered by, the Supreme Court. The Attorney General is entitled to make submissions on behalf of the Crown, but need not do so, and any omission by the Attorney General to address any matter in those submissions cannot inform the validity of the consideration of an application under s 78 by a judge of the Supreme Court.
The applicant's essential contention is that Button J fell into error by failing to consider and address ground 2 of his application, and particularly that part directed to the treatment of evidence in the Victorian proceedings. Button J had no obligation specifically to respond to the 13 questions put by the applicant, at least provided that his Honour addressed the substance of the matters raised by the 13 questions (on which see [30] above): cf Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95 at [98] (White JA). Thus, the question raised by this application for judicial review is whether Button J considered and addressed the substance of ground 2 of the application. Only to the extent that the answer to that question is no will it be necessary to consider whether any such failure constituted jurisdictional or other legal error.

The relevant provisions

The relevant provisions of CARA are as follows: 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. ... 79 Consideration of applications (1) After considering an application under section 78 or on its own motion - (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if 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. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if - (a) it appears that the matter - (i) 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 (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. ...

Button J's reasons for decision

Instead of refusing to consider the application under s 79(3) as, for instance, raising matters which had been previously dealt with on appeal or in a previous s 78 application, Button J elected to deal with the application on its merits by addressing the threshold question raised by s 79(2) (at [43]-[45]).
His Honour reduced the applicant's written arguments for review of his sentence to three propositions (at [39]-[42]), noting as a preliminary matter that the applicant did not dispute the accuracy of the agreed statement of facts. First, her Honour's assessment of the applicant's role on the basis of the agreed facts as being somewhat greater than that of his co-offender involved a denial of procedural fairness, was not reasonably open, and could only have been made if proven beyond reasonable doubt. Secondly, there was a "legal or evidential disjunction" between the finding about the applicant's role made by the County Court of Victoria and the finding made in the District Court of New South Wales. Thirdly, assuming the first and second propositions to be correct, the sentencing judge's adoption of the same starting point for the applicant and Mr Koh involved an erroneous disparity, having regard to the more favourable subjective features of the applicant.
It should be emphasised that those three propositions were not intended to correspond to the applicant's three grounds. Rather, the propositions identified by Button J related to the essential issues which his Honour saw as arising out of the applicant's submissions, read as a whole. The second proposition, for example, related to the third ground of the s 78 application. The three propositions were dealt with as follows.
As to the first proposition, Button J observed that the applicant did not attempt to dispute the accuracy of the agreed facts. Those facts established the five particular aspects of the conduct of the applicant - his five "areas of concern" - to which the sentencing judge gave weight in assessing the applicant's role. Her Honour's assessment of the applicant's role was not only open but "more likely than not, perhaps very likely indeed". The applicant had not been denied procedural fairness in relation to that assessment: her Honour's remarks on sentence record that submissions had been made by the applicant's counsel concerning the proper inference to be drawn from the agreed facts as to his role. Finally, Button J observed that there was no authority to suggest that "the process of comparison of roles can only be concluded adversely to an offender" beyond reasonable doubt.
Button J rejected the second proposition because "the proceedings in Victoria pertained to a different offence, committed in a different State, underpinned by different facts, about which different concessions were made, that were brought by a different prosecuting authority, before a different judge, and that featured the appearance of a different Crown prosecutor". Accordingly, the favourable finding of equivalent roles made in Victoria was irrelevant to the validity of the unfavourable finding made in NSW; there was no "legal or evidential disjunction" between them.
In those circumstances, the third proposition did not truly arise, but Button J nevertheless observed that a parity argument had failed before the Court of Criminal Appeal and that, for his part, he detected "no erroneous disparity" between the sentences of the applicant and Mr Koh. Having considered what he regarded as the essential propositions involved in the applicant's submissions, his Honour concluded that the test in s 79(2) was not satisfied and "dismissed" the application.

No error arising from a failure to consider ground 2

As is apparent from the summary of ground 2 at [24]-[27] above, the applicant's essential contention was that the inference drawn by Woodburne DCJ as to his role depended on a "misuse" of the agreed facts concerning the five "areas of concern" relating to aspects of his conduct. That contention depended, however, on two different and freestanding arguments.
The first argument made in support of ground 2 was that evidence of certain matters set out in the agreed facts had been ruled inadmissible or was the subject of directions in the Victorian proceedings, and that the agreed facts therefore could not have been relied on to draw inferences in the NSW sentencing proceedings. The premise of this argument is not correct. The transcript of the 6 days of preliminary hearings does not record any general ruling by Judge Gullaci on the admissibility of the "Sydney evidence" or any directions about its use, either on the pages referred to by the applicant or otherwise. Had Button J failed to consider this first argument, that would be a sufficient reason to conclude either that any such failure did not amount to legal error or that the Court should exercise its discretion to refuse relief.
However, Button J was under no obligation to determine whether the premise of the argument was correct before rejecting it. The remaining difficulty with Mr Li's first argument was that, as his Honour noted at the outset, he did not dispute the accuracy of the agreed statement of facts. Whether evidence reflected in the agreed facts was inadmissible in the Victorian proceedings did not bear on whether the sentencing judge was entitled to draw inferences from the agreed facts, unless perhaps the reasons for its inadmissibility in the Victorian proceedings cast doubt on the accuracy of the agreed facts. The applicant made no suggestion that was so. In that circumstance it was entirely appropriate for Button J to take the agreed facts as established - including in relation to the applicant's five "areas of concern" - and then to ask whether the arguments made by the applicant raised any doubt as to sentencing judge's conclusions based on those facts. Given the irrelevance of any alleged "rulings" or "directions" in the Victorian County Court to the status of the agreed statement of facts, it was not necessary that his Honour address them directly in giving reasons for rejecting the application.
Mr Li's second argument was that the five aspects of the agreed facts referred to by Woodburne DCJ did not support the inference her Honour drew as to the applicant's role. That argument drew on the submissions made by the applicant's counsel in the preliminary hearing in Victoria as to the probative value of the evidence underlying or informing the agreed facts. Many of those submissions proceeded on the basis that there was no direct evidence that the applicant knew of the intended use of the factory unit. Those submissions had very limited relevance in the District Court sentencing proceeding once the applicant accepted (as the agreed facts record) that he knew the factory unit was to be used to store substantial quantities of a prohibited drug. In any event, however, the question raised by this argument was reflected in the first proposition identified by Button J, which relevantly concerned whether the inference drawn by the sentencing judge was not open and/or was required to be proved beyond reasonable doubt. There is no basis for concluding that this aspect of ground 2 was not considered.
On one view of the applicant's submissions, he made a final point in support of ground 2: namely, that evidence given in the course of 6 days of pre-trial hearing, but which was not reflected in the agreed facts, tended to undermine the inference about his role drawn by the sentencing judge from those facts. The written submissions were lengthy, and contained instances of alleged "evidence misuse" concerning the five "areas of concern". As was explained above at [27], the submissions in relation to the third area of concern included an extract of the transcript of cross-examination of a Victorian detective as to the absence of a "combination tag" on the key found in the Camry driven by the applicant to Victoria. (In his application to Button J and before this Court, the applicant repeatedly described the transcript of the pre-trial hearing as containing "evidence" not available at his sentencing before Woodburne DCJ. Except in this particular respect, that description was incorrect.)
There is no express reference in the reasons for decision of Button J to any argument along these lines concerning the applicant's possession of the key. Given the obscurity of the applicant's submissions, it is likely that his Honour did not consider this particular matter at all.
Of course, a failure expressly to address an argument or to consider some material does not, without more, constitute legal error. But a failure to address a "substantial, clearly articulated argument" may amount to a failure to afford procedural fairness or, as the applicant formulated the error in this Court, in some circumstances to a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088. What is critical is that the argument was "clearly articulated" in the sense that the decision-maker can be said to have been put on notice of the argument, and "substantial" in the sense that it was capable of altering or clearly material to the decision: see DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [53]-[54]; Insurance Australia Ltd (t/as NRMA Insurance) v Milton [2016] NSWCA 156 at [8]-[9].
The applicant made no reference to any evidence relating specifically to the key in his argument before this Court. The focus of his submissions, both in this Court and in support of his application before Button J, was on the rulings and directions which he suggested were recorded in the transcript of the Victorian proceedings. In his reply submissions of 4 November 2019, for example, the applicant referred to the transcript of the Victorian proceedings as concerned with the "record of legal argument, evidence direction, evidence ruling, final conclusion and sentence submission by both [parties during] my Victorian proceedings". There is a question whether any argument founded on evidence given on the voir dire in Victoria about the appearance of the key was "clearly articulated". Certainly, such an argument was not central to the application made to Button J.
More significantly, the argument is not "substantial" in the requisite sense. Granted that material pointing to the possibility of evidence which might qualify an inference drawn from admitted facts could raise the appearance of a doubt or question as to a mitigating circumstance or part of the evidence in the applicant's case on sentence, two difficulties remain. First, it is likely that a finding that the key found in the Camry on 18 December 2006 was the original (with the "combination tag" removed), rather than a copy, would be open to the requisite standard. There is nothing to suggest that the dissimilarity between the key handed over to Mr Li and the key found in the Camry went any further than the absence of the tag, or that the tag could not have been easily removed. Secondly, possession of a copy of the key would also support Woodburne DCJ's assessment of the applicant's role. At the time the key was found in the applicant's possession in Victoria, over 2000 kg of MDP2P remained in the factory unit to which it allowed access. No copy was found in the possession of Mr Koh.
In those circumstances any failure to address the argument outlined above at [46], to the extent that argument was made to Button J, could not involve a constructive failure to exercise jurisdiction.
In summary, the claim that Button J failed to consider or address ground 2 is not made out. It also follows that the reasons given by Button J identified and addressed the essential propositions which emerged from the applicant's submissions. That his Honour's reasons were brief, in circumstances where the application before him was largely repetitive of that previously made to Harrison J, does not make them inadequate.

The assessment of the applicant's role

The applicant's basal complaint is about the sentencing judge's assessment of his role in the offending relative to that of his co-offender. There is a question whether that assessment is properly characterised as merely a comparison of the objective seriousness of their respective offending for the purposes of parity or as also involving a finding that one offender occupied a higher position in the hierarchy of the criminal drug organisation for which they both worked. Each could only commence with what the co-offenders actually did. But the latter treats the actions of each co-offender as reflecting distinct levels of objective seriousness only or primarily because of their relative positions in the hierarchy.
Button J took the former view of the sentencing judge's remarks. His Honour described the sentencing judge as having undertaken a "process of comparison of roles", and reasoned (at [48]): Relatedly, it is not the law that, when comparing the objective roles of two co-offenders as part of complying with the doctrine of parity in sentencing, a sentencing judge must only make adverse findings if satisfied of them beyond reasonable doubt. It is true that matters of aggravation above and beyond the elements of an offence particular to an offender must be established to that standard (see R v Olbrich [1999] HCA 54; 199 CLR 270). But there is no authority for the proposition that the process of comparison of roles can only be concluded adversely to an offender at the criminal standard of proof.
If Button J's interpretation and characterisation of the remarks on sentence is correct, there would be no reason to doubt his Honour's view that an adverse assessment of relative objective seriousness need not be concluded beyond reasonable doubt. The characterisation of objective seriousness is "classically" a matter for the sentencing judge's discretion: Mulato v R [2006] NSWCCA 282 at [37], [46]. But if, on the other hand, the sentencing judge made a finding of fact as to the applicant's relative position in the hierarchy of the criminal syndicate in which he and Mr Koh were involved, that fact had to be established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. (That is not to say the sentencing judge was necessarily obliged to make any finding as to the applicant's relative position, if none was supported by the evidence to the applicable standard of proof: Olbrich at [28]; Filippou v R (2015) 256 CLR 47; [2015] HCA 29 at [64], [66].)
The matter is not free from authority. Campbell J observed in Mato v R [2015] NSWCCA 328 at [139] that where "the prosecution wish to persuade the judge that an offender is worthy of a heavier sentence because he had a more senior role in a criminal hierarchy than a co-accused, it will carry the onus of proving those facts beyond reasonable doubt". Bathurst CJ, with whom Harrison and N Adams JJ agreed, took the same view in Yin v R [2019] NSWCCA 217 at [30]. In other jurisdictions, see eg R v Teng [2005] VSC 33 at [51]; R v Tan [2006] VSC 177 at [30]; Tanner v Western Australia [2013] WASCA 142 at [180]-[182] (Buss JA, Martin CJ and Mazza JA agreeing).
However, a conclusion that Button J's reasons in this respect involved an error of law would not result in a favourable outcome of the present application for Mr Li. The difficulties attending an order in the nature of certiorari or mandamus on review of a decision under s 79 are well known: see generally Sinkovich at [63]-[75]. It is, moreover, at least doubtful whether declaratory relief would be available for a non-jurisdictional error of law which could not be identified on the face of the record: Buttrose v Attorney General for New South Wales [2015] NSWCA 221; (2015) 324 ALR 562 at [11]. Two further questions would then arise, namely whether Button J had authority to answer the question raised by s 79(2) on the basis of an incorrect understanding of the relevant law and, if so, whether Supreme Court Act 1970 (NSW), s 69(4) applies to expand the record for the purpose of considering whether there was an error of law on its face. Neither is free from difficulty, and neither was the subject of submissions.
In the circumstances, it is not necessary to consider the correctness of Button J's treatment of the assessment of the applicant's role. It would in any event be appropriate, as a discretionary matter, to decline to grant declaratory relief. The finding the sentencing judge made about the applicant's role (if that is how it is properly characterised) was open beyond reasonable doubt. It is necessary to emphasise that the finding was a very limited one. In terms it was no more than that the applicant's position in the hierarchy was slightly superior to Mr Koh's. All of the evidence before the sentencing judge supported that modest conclusion: the applicant obtained the premises, controlled access to them (at least as between himself and Mr Koh), and was trusted with sizeable amounts of money, all while bearing a much lower risk of detection. The evidence was that the applicant's straightened circumstances explained his offending. There is no basis for concluding that his payments of $137 to register the business name and $2,100 for the lease were from his own funds, to be paid back later by Mr Koh, rather than from funds of the drug syndicate with which he (rather than Mr Koh) was entrusted.
Finally, this matter was raised, if only obliquely, in the applicant's sentence appeal. The applicant's counsel argued that the sentencing judge had not been satisfied beyond reasonable doubt that the applicant's position in the hierarchy was superior to Mr Koh's, had made only a comparison of what each offender did for the purposes of parity, and had therefore failed to determine the objective seriousness of the offending. The Court of Criminal Appeal rejected that argument, concluding that the sentencing judge made an affirmative finding concerning "the applicant's role, that is to say, his position in the hierarchy" (at [30]) and that the limited evidence before the sentencing judge "would not have enabled her Honour to find out more about his position in the hierarchy than that it was above Koh's" (at [29], emphasis added). The Court plainly, and in my view rightly, regarded that finding as open.

Conclusion

Mr Li's application for an extension of the time in which to commence judicial review proceedings should be granted, and his summons dismissed.
McCALLUM JA: Subject to the reservation expressed by Macfarlan JA, which I share, I agree with Meagher JA.

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HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty and was sentenced in the NSW District Court for knowingly taking part in the supply of a large commercial quantity of a prohibited drug, having previously pleaded guilty to and been sentenced for a related offence in the County Court of Victoria. His second application for an inquiry into his NSW sentence under Crimes (Appeal and Review) Act 2001 (NSW) (CARA), s 78 was dismissed by Button J on the basis that the application did not raise the appearance of a doubt or question as to any mitigating circumstance in the applicant's case on sentence. The applicant sought judicial review of that decision. The central contention of his s 78 application was that the sentencing judge erred in assessing his offending to be slightly more serious than that of his co-offender. Whilst the applicant accepted the accuracy of the agreed facts on sentence, he submitted that the sentencing judge's assessment depended on the "misuse" of those facts to draw inferences which were not open to the requisite standard or procedurally unfair. It was said to follow, having regard to his more favourable subjective circumstances, that her Honour was wrong to adopt the same starting point in sentencing the two offenders. Before the Court of Appeal, the applicant submitted that Button J had failed to consider and address "ground 2" of his s 78 application, which concerned "rulings" and "directions" allegedly made or given by the County Court judge in the Victorian proceedings that were said to be inconsistent with the findings of the sentencing judge on the basis of the agreed facts. Alternatively, but in respect of substantially the same material, he submitted that Button J's reasons were inadequate and did not respond to matters raised by his reply submissions. Similar errors were said to have been made by the Attorney General, who had made submissions to Button J pursuant to CARA, s 79(4). Each of these omissions was said to involve jurisdictional or other legal error. Any omission by the Attorney General to address the applicant's submissions being irrelevant to the validity of Button J's decision, the primary issue for the Court was: (1) Whether Button J had in fact failed adequately to consider or address the arguments made in support of the s 78 application. The Court held (Meagher JA, Macfarlan and McCallum JJA agreeing), dismissing the summons seeking judicial review:

The premise of "ground 2" of the application to Button J was not correct. The transcript of the pre-trial hearing in Victoria prior to the applicant's plea did not record any ruling or direction regarding the admissibility or use of the evidence which came to be reflected in the agreed facts for the NSW sentencing proceedings: at [1] (Macfarlan JA); [16], [43] (Meagher JA); [61] (McCallum JA).
The contention that Button J failed to address the arguments made in support of the s 78 application was not made out. Although in one respect the applicant's written submissions may have raised an argument not dealt with by his Honour, that argument was neither substantial nor clearly articulated: at [1] (Macfarlan JA); [42]-[52] (Meagher JA); [61] (McCallum JA). Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, discussed.
It followed that Button J's reasons identified and addressed the essential propositions emerging from the applicant's submissions: at [1] (Macfarlan JA); [52] (Meagher JA); [61] (McCallum JA).

Judgment

MACFARLAN JA: I agree with the orders proposed by Meagher JA. I also agree with his Honour's reasons for judgment save that in respect of the matters dealt with by his Honour in [53]-[59], I confine my agreement to his Honour's conclusion in [58] that the sentencing judge's finding about the applicant's role was open to her even if the standard to be applied was beyond reasonable doubt. There is no basis for thinking that her Honour did not apply that standard.
MEAGHER JA: The applicant, Mr Li, seeks judicial review of the decision of Button J to dismiss his application under Crimes (Appeal and Review) Act 2001 (NSW) (CARA), s 78 for an inquiry into his sentence for knowingly taking part in the supply of a large commercial quantity of a prohibited drug, contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(2). He also seeks an extension of the time in which to bring his proceedings for judicial review. That application is not opposed. His sentence, of 19 years 6 months with a non-parole period of 12 years 3 months, was set to commence some 2 years 3 months after the commencement of his sentence for a related Victorian offence, on 18 December 2006. In less than a year the applicant will be eligible for parole.
Mr Li's complaint to Button J was directed to the finding of the sentencing judge, Woodburne DCJ, that his "role" in the offending was somewhat greater than that of his co-offender, Mr Koh. He submitted (among other things) that a contrary conclusion had been reached by the County Court of Victoria in sentencing him for the Victorian offence, and that her Honour's finding depended on evidence which had not been admitted, or been the subject of directions as to its use, in the Victorian proceedings. It was said to follow, having regard to the applicant's more favourable subjective features, that her Honour erred in adopting the same starting point in sentencing the applicant and Mr Koh.
The applicant now submits that Button J erred in failing adequately to address those arguments when considering whether there appeared to be any doubt as to a "mitigating circumstance" in the applicant's case on sentence: cf CARA, s 79(2). In this context, a doubt or question as to a mitigating circumstance may arise from an error of law which "possibly gave rise to a more severe sentence than should properly have been imposed": Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [31]-[32] (Basten JA).
As will be seen, the applicant's claim that Button J failed to address the arguments made in support of his s 78 application is not made out. In one respect the applicant's argument may raise a matter which was not dealt with by Button J, understandably, given that it was not clearly articulated and not obviously material to his Honour's decision. In another respect, not identified or relied on by the applicant, there is a question whether his Honour's reasons involve a legal error. However, any such error would not justify intervention by this Court.

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Judgment (11 paragraphs)

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