Li v R

JUDGMENT

1. DAVIES J: I agree with Yehia J.
2. FAGAN J: I agree with Yehia J. The authorities cited by her Honour show that the Court must treat the consideration of unlikelihood of reoffending (s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) as distinct from the offender's prospects of rehabilitation (s 21A(3)(h)), despite the broad extent to which evidence relevant to either consideration will usually also be relevant to the other. It follows that the Court is bound to uphold the single ground of appeal in this case, where evidence and submissions were specifically addressed to the unlikelihood of reoffending but the sentencing judge did not in terms make a finding on that subject. The judge probably had regard to that evidence in reaching her conclusion that the applicant had "reasonable prospects of rehabilitation" and may not have arrived at any different aggregate sentence if she had expressly found that the applicant was unlikely to reoffend, which the Crown did not contest. Nevertheless, the applicant was entitled to have a finding on the matter and to have it explicitly taken into account. That was overlooked.
3. Necessarily in these circumstances this Court must make its own finding on unlikelihood of reoffending and must, therefore, proceed to re-sentence taking into account all relevant considerations. I concur in Yehia J's finding that the applicant is not likely to reoffend, based upon the unchallenged evidence before the sentencing judge. This Court comes to resentence on the basis of material additional to that which was available at first instance, namely, evidence of the impact upon the applicant of her lack of contact with her 12-year-old son over the past year. It is on the basis of hardship to the applicant in that respect, which she has experienced since the original sentence was passed, that I concur in a further variation to the ratio of the non-parole period on the grounds of special circumstances, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. I would arrive at the same aggregate head sentence as that which was imposed at first instance.
4. YEHIA J: Hui Li (the applicant) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence of imprisonment imposed upon her by Latham ADCJ (the sentencing judge) in the District Court at Sydney on 27 May 2022. The applicant was sentenced together with a co-offender, Phu Minh Dang. The remarks on sentence deal with both offenders.
5. The applicant pleaded guilty in the District Court on 18 February 2022, attracting a 10% discount on the indicative sentences. The sentencing judge imposed an aggregate sentence of 7 years imprisonment, commencing on 3 February 2022 and expiring on 2 February 2029, with a non-parole period of 5 years imprisonment, expiring on 2 February 2027.
6. The counts, offences, maximum penalties, relevant standard non-parole periods (SNPP), and the indicative sentences (applying a 10% discount) are summarised as follows: Count Offence Maximum Penalty and SNPP Indicative Sentence Supply not less than the commercial quantity of a prohibited drug. Maximum penalty: 20 years imprisonment. 4 years and 6 months imprisonment 1 (351.32 grams of methylamphetamine). SNPP: 10 years imprisonment. (taking into account on a Form 1 a further offence of supply cannabis). Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act) s 25(2). Supply of a prohibited drug. Maximum penalty 15 years imprisonment. 2 (74.9 grams of methylamphetamine). No SNPP. 2 years and 8 months imprisonment. DMT Act s 25(1). Supply of a prohibited drug Maximum penalty: 15 years imprisonment. 3 (8.4 grams methylenedioxymethamphetamine (MDMA)). No SNPP. 2 years and 8 months imprisonment. DMT Act s 25(1). Deal with property, reasonable grounds to suspect it was the proceeds of crime Maximum penalty: 15 years imprisonment. 4 ($240,750). No SNPP. 18 months imprisonment. Crimes Act 1900 (NSW) s 193C(1). Possess a prohibited weapon without authorisation by a permit Maximum penalty: 14 years imprisonment. 5 (taser in working order). SNPP: 5 years imprisonment. 2 years and 8 months imprisonment. Weapons Prohibition Act 1998 (NSW) (WPA) s 7(1). 6 Knowingly direct and participate in a criminal group. Maximum penalty: 15 years imprisonment. 5 years and 3 months imprisonment. Crimes Act s 93T(4A).

Background of the Offences

1. Agreed facts were tendered as part of the Crown bundle. In May and June 2020, the applicant supplied a commercial quantity of methylamphetamine in the Hurstville area as the principal of the criminal enterprise (count 1). The applicant also directed a criminal group, comprising herself and three co-offenders, Phu Minh Dang (Dang), Ryan Lin (Lin) and Michael Lowe (Lowe) (count 6) in the drug supply enterprise.
2. The applicant employed Lin to manage a makeshift brothel from an apartment in Hurstville and to conduct drug sales on her behalf. The applicant operated the brothel, through which customers were supplied with amounts of methyl amphetamine which varied between 1.75 grams to 28.4 grams. The enterprise was profitable.
3. The applicant was in an intimate relation with Dang, who assisted her with aspects of the prostitution and drug supply operations. They were also users of methylamphetamine.
4. Lowe facilitated the storage of money and drugs for the applicant and obtained supplies of methylamphetamine on her behalf.
5. Police lawfully intercepted telephone calls and text messages made and received by the applicant and Dang in May and June 2020. Code words were used when the two spoke about drugs, often sounding as though they were referring to prostitution related matters, such as using the words "girls" or "special girls", when they were in fact referring to methylamphetamine. Other terms were used to reference prohibited drugs. The calls also recorded the applicant directing Lin, Lowe and Dang in the supply of prohibited drugs and the collection of money.
6. The applicant occasionally arranged for customers to come to her unit for the supply of drugs, or alternatively, referred them to Lin for the drug supply or for collection of payment. She also delivered drugs to customers depending on her availability and convenience.
7. Police executed three search warrants on 18 June 2020. At a property at Oatley, police found a safe under the floorboards of the dining room which contained $200,750 in cash. Telephone intercepts recorded discussions between the applicant and Lowe, who had access to the safe and purchased methylamphetamine using the money from the safe at the applicant's request.
8. At the applicant's unit in Hurstville, police found $40,000 in cash in a bedroom drawer. A total of $240,750, including the money located at the Oatley property, constituted the offending captured in count 4. Police also located 74.9 grams of methylamphetamine (count 2), 8.4 grams of MDMA (count 3) and 814.8 grams of cannabis (Form 1 to count 1).
9. A taser, which was in working order, was located in the applicant's vehicle (count 5). On 12 May 2020, the applicant was recorded speaking with Lowe. She admitted possession of an electric baton and stated that the taser was dangerous due to the electric shock being strong. The applicant also stated that she needed a charger for the taser.
10. The lawfully intercepted telephone calls on the applicant's mobile telephone established that she had engaged in the supply of not less than the commercial quantity, namely 351.32 grams, of methylamphetamine.

Ground of Appeal

1. The applicant relied on a single ground of appeal: the sentencing judge erred by failing to consider, and therefore take into account a relevant factor, namely, the applicant's likelihood of re-offending pursuant to s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA).

Applicant's Submissions

1. The applicant submitted that the asserted error is of a kind that falls within the scope contemplated by House v The King (1936) 55 CLR 499; [1936] HCA 40 (House), namely that, the sentencing judge failed to consider, and take into account, a relevant factor.
2. The applicant contended that pursuant to s 29A(3)(g) of the CSPA, a sentencing judge is required to take into account an offender's unlikelihood of re-offending where it is raised on the material. The assessment of an offender's unlikelihood of re-offending is "separate and distinct" from the assessment of an offender's prospects of rehabilitation, although the evidence in support of each may overlap: see Meoli v R [2021] NSWCCA 213 (Meoli) at [26]-[45].
3. The applicant submitted that Meoli is a case where, although the sentencing judge did not address the issue of the offender's unlikelihood of re-offending in the sentencing judgment, the appeal was nevertheless dismissed for two reasons, namely: 1. it was not put in issue at the sentencing proceedings at first instance insofar as defence counsel did not address on that issue; and 2. there was no basis in the evidence for a positive finding that the offender was unlikely to re-offend.
4. In the present case, counsel, at first instance, did address the applicant's unlikelihood of re-offending in the written submissions dated 18 May 2022 (MFI #1) at page 12. Counsel referred to Jason Borkowski's (the Borkowski Report) [1] opinion on the issue of re-offending and noted that the applicant "presents with a number of strengths and protective factors that suggests she would be a low risk of future re-offending". These submissions were not withdrawn or otherwise altered in oral submissions.
5. The applicant submitted that this issue was squarely raised in the sentencing proceedings and was not challenged by the Crown. The applicant further contended that there was nothing in the sentencing remarks that suggest that the sentencing judge rejected the assessment that the applicant was a low risk of re-offending. Nor could the sentencing judge have done so, in light of the submission that was put, the evidence in support, and the lack of contradiction by the Crown. The applicant submitted that this tends towards the view that the sentencing judge failed to take into account, and therefore, attribute weight to this factor.

Respondent's Submissions

1. The respondent submitted that the sole ground of the appeal has not been made out. The respondent contended that the sentencing judge's findings as to the applicant's "good prospects of rehabilitation" incorporated a finding that the applicant was unlikely to re-offend.
2. The respondent submitted that the sentencing judge referred to the Borkowski Report which "outlines the offender's subjective circumstances". [2] In doing so, her Honour accepted and acted on the contents of the report. [3] The sentencing judge referred to the fact that the applicant had no criminal history and that the offending was described by others as "completely out of character." The sentencing judge found that the applicant had "reasonable prospects of rehabilitation". The respondent submitted that this finding was based upon the opinion of Mr Borkowski and was intended to encompass a finding that the applicant is unlikely to re-offend. [4]
3. In the context of the sentencing proceedings where there was no contest in the evidence presented to the Court as to the applicant's unlikelihood of re-offending or good prospects of rehabilitation, the respondent submitted that the findings of the sentencing judge make it clear that her Honour did consider, and accept, what was presented as overlapping concepts, namely, that the applicant was unlikely to re-offend and had good prospects of rehabilitation.

Remarks on Sentence

1. The sentencing judge sentenced the applicant and her co-offender, Dang, on the same day. The remarks on sentence relate to both offenders and are contained in a 10-page document. A further co-offender, Lowe, was sentenced on 17 March 2022, by Williams ADCJ. The sentencing of that co-offender is only relevant insofar as he was referred to by Latham ADCJ in the context of applying parity.
2. Her Honour briefly set out the facts relating to each offence, including her Honour's assessment of the objective seriousness of the offences. With respect to count 1, the objective gravity was said to be "close to the mid-range". The objective gravity with respect to counts 2 and 3, each fell "below the mid-range". The objective gravity of count 4 was "very close to the mid-range". The objective gravity with respect to count 5 was "just below the mid-range"; and count 6 "at about mid-range of objective gravity". These findings are not challenged.
3. The sentencing judge then summarised the applicant's subjective case. Her Honour noted that the applicant was 42 years of age with no prior convictions. Her Honour referred to the Borkowski Report which included the offender's subjective circumstances which suggest a history of dysfunctional personal relationships throughout her life leading to the abuse of drugs, exposure to domestic violence and a major depressive disorder.
4. The applicant left her family in China at the age of 15 to pursue vocational training in a "Chinese city", then migrated to Australia at the age of 25. She has two children from different relationships. At the time of sentencing, her 11-year-old child was in the care of a close relative.
5. The applicant had engaged with a psychologist between 2011 and 2014, in an effort to address her depression. In January 2021, she again sought treatment for depression. There was no causal link discerned between the applicant's mental health and her offending conduct, such as to reduce her moral culpability. The applicant does not take issue with respect to the finding that no nexus existed.
6. The applicant commenced operating her brothel in 2019, and quickly expanded her business of drug supply. Her Honour accepted that incarceration will likely exacerbate the applicant's depression, a finding that warranted a "modest departure in the statutory ratio".
7. Her Honour addressed parity as between the offender and Lowe. The principal difference resided in the quantity supplied by the applicant, extending over numerous individual supplies as opposed to larger discrete amounts. Her Honour noted that both the applicant and Lowe "have no criminal history and both offenders are described by others, in terms of their offending, being completely out of character". In respect of prospects of rehabilitation, her Honour said: "I accept that both have reasonable prospects of rehabilitation". Her Honour then proceeded to record the indicative sentences, applying a discount of 10%, before imposing the aggregate term of imprisonment.
8. There was no reference to the applicant's "unlikelihood of re-offending" pursuant to s 21A(3)(g) of the CSPA.

Consideration

1. During the sentencing proceedings, the sentencing judge raised three issues with respect to matters raised in the offender's written submissions, relied upon at first instance. [5] None of these issues related to the applicant's unlikelihood of re-offending.
2. Under the heading: "Other Subjective Features", the written submissions relied upon at first instance included the following: "Ms Li has no prior criminal history and Mr Borkowski notes that she otherwise 'presents with a number of strengths and positive factors that suggests she would be a low risk of future offending'. Having outlined and considered all the relevant factors on p9 of his report, Mr Borkowski states that Ms Li is rated as Low Risk of general reoffending using the LSI-R measure."
3. The written submissions separately addressed (at (e)) the applicant's prospect of rehabilitation, which was said to be "very good".
4. In assessing the applicant as a Low Risk of re-offending, Mr Borkowski not only relied upon an actuarial assessment designed to assess risk of recidivistic criminal behaviour, he also relied upon a number of strengths and protective factors suggesting that the applicant would be a low risk of future offending. These included her general self-regulation skills, capacity for maintaining stable interpersonal relationships, and access to prosocial peer networks and supports. It was also noted that she had a positive attitude towards vocational training and employment, and a history of seeking and maintaining employment, particularly during her early adult life. The absence of a prior criminal history and the fact that she did not express any antisocial rationalisations to support her criminal lifestyle, supported the finding that she is a low risk of re-offending.
5. Mr Borkowski's notation that the applicant had been exposed to substance using peers, her own illicit substance use, and a depressive disorder, did not detract from his overall assessment with respect to the unlikelihood of re-offending. Mr Borkowski's assessment in that regard was not the subject of challenge.
6. Section 21A(3) of the CSPA mandates that a number of mitigating factors must be taken into account in determining the appropriate sentence for an offence to the extent to which they are applicable. Relevantly, those mandatory statutory factors include: that the offender is unlikely to re-offend (s 21A(3)(g) of the CSPA); and, that the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise: see s 21A(3)(h) of the CSPA.
7. In TL v R [2020] NSWCCA 265, Bellew J (with whom Hoeben CJ at CL agreed), observed at [369] that: "The issues of an offender's prospects of rehabilitation and likelihood of re-offending are separate and distinct."
8. Although Adamson J dissented with respect to the application of s 21A(3)(g) of the CSPA, she did not, as I understand her Honour's reasons, disagree with Bellew J's statement of principle.
9. The necessity to address both the offender's prospects of rehabilitation and unlikelihood of re-offending was emphasised in Zuffo v R [2017] NSWCCA 187 at [47], where Price J (with whom Hoeben CJ at CL and Adamson J agreed) stated the following: "Although commonly linked, the concepts are not the same. In R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225, McClellan CJ at CL and Johnson J drew a distinction between the unlikelihood of re-offending and rehabilitation. Their Honours said at [118]-[121]: 'Inherent in Mr Duff's account of punishment is the assumption that rehabilitation addresses the moral sensibilities of the offender, not just his or her propensity to reoffend. Indeed, were it otherwise, there would be little to distinguish rehabilitation from specific deterrence, which is separately provided for by s.3A(b) Sentencing Procedure Act. To the extent that moral self-correction and renunciation of one's own wrongdoing are captured by the concept of rehabilitation for which s.3A(d) of the Act provides, it can fairly be said that the present respondents are in need of rehabilitation, notwithstanding that they are unlikely to reoffend. … Although it is common for judges, when considering the subjective characteristics of an offender, to evaluate the prospects of the person reoffending and to express an opinion as to whether the person is unlikely to reoffend, it could never be said that a person who has once offended would never reoffend. Furthermore, a person who has offended will always be in need of the opportunity to establish themselves as a law abiding and productive member of the community. Rehabilitation is a concept which is broader than merely avoiding reoffending. A finding that an offender is not likely to reoffend may often be made not only because of expressions of remorse, but because the fact that the offender has been caught, convicted and punished (which may include extra-curial punishment) will operate to deter the offender from future wrongdoing. Deterrence will operate in respect of an offender even though the offender may not have restructured his or her thinking so that they thereafter consciously determine to re-establish themselves as a positive member of society.'"
10. In Meoli, the sentencing judge had considered the applicant's prospects of rehabilitation but did not separately address the applicant's unlikelihood of re-offending. Simpson AJA (with whom Bathurst CJ and Bellew J agreed) proceeded on the basis that adherence to the requirements of s 21A(3) of the CSPA requires, where it is relevant and known to the Court, that unlikelihood of re-offending be taken into account, separately and distinctly from prospects of rehabilitation: see at [39]. Her Honour also observed that the sentencing judge's detailed assessment of the applicant's prospects of rehabilitation in that case, was not a discrete finding with respect to s 21A(3)(g) of the CSPA: see also at [39].
11. Unlike the present case, however, the absence of any reference to the unlikelihood of re-offending was explained by the absence of any submissions with respect to that subject matter. There was also no evidence which could support a finding that the applicant in that case was unlikely to re-offend.
12. Here, not only was there evidence that the applicant was a low risk of re-offending, but the issue was also addressed in written submissions filed on behalf of the applicant at first instance. There was no challenge to the evidence, or any contrary submissions put by the Crown during the sentencing proceedings. This is not a case where it could be inferred that her Honour, having considered the material, was not satisfied that the offender is unlikely to re-offend.
13. The concepts of prospects of rehabilitation, remorse and unlikelihood of re-offending are often overlapping. Sentencing judges are often called upon to consider and digest voluminous material, including submissions, in providing ex tempore reasons or in producing remarks on sentence over very short periods of time. The observation of Adamson J in Baker v R [2022] NSWCCA 195 (Baker) at [73] are apt. The sentencing discretion requires more than a "tick a box" process or a mechanistic approach to the factors set out in ss 21A(2) or 21A(3) of the CSPA. For instance, in a given case, a sentencing judge might comprehensively refer to the evidence about an offender's prospects of rehabilitation, such that it can be discerned that the sentencing judge took into account the unlikelihood of re-offending, notwithstanding no express reference to it.
14. The present case can be distinguished from Baker where the sentencing judge specifically addressed the relevant mitigating factors, including the prospects of rehabilitation and re-offending. The sentencing judge in Baker made considerable reference to both mitigating factors, the evidence, and her findings. Her Honour either addressed the mitigating factors by way of separate headings, or otherwise addressed them in her reasons generally: see at [66]-[68].
15. While questions of remorse, rehabilitation and unlikelihood of re-offending are interconnected, and in some cases could be dealt with "compendiously", what is required is that the reasons make it evident that the relevant factors have been taken into account. This is particularly so where evidence has been relied on and submissions made with respect to factors set out in s 21A of the CSPA.
16. In the present case there was only a cursory reference to the Borkowski Report. Other than noting that the applicant had no prior criminal record and the offending appeared to be "out of character", the sentencing judge, referring to both the applicant and the co-offender, Lowe, in the context of parity, found them both to have "reasonable prospects of rehabilitation". That assessment does not, in this case, encompass a finding that the applicant was unlikely to re-offend, a finding that was open on the evidence.
17. I am satisfied that the sole ground of appeal should be upheld.

Re-sentence

1. Having established error, the Court is required to undertake afresh, an independent exercise of the sentencing discretion: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35], [42].
2. There is no challenge by the applicant to the sentencing judge's findings in respect of the objective seriousness of the offences. The applicant was the principal of a commercially successful drug supply operation. General deterrence, denunciation and the protection of the community are relevant and weighty considerations in the sentencing exercise.
3. I have already set out the relevant subjective factors. I adopt her Honour's finding that the applicant has reasonable prospects of rehabilitation. In light of the opinions expressed by Mr Borkowski, I find that the applicant is unlikely to re-offend.
4. The applicant relies upon her affidavit, sworn on 26 April 2023, and filed on that date. The applicant's youngest child, her 12-year-old son, is currently in the care of his paternal grandmother. Since her incarceration on 27 May 2022, the applicant has had no contact with her youngest son. She has not spoken to him via telephone, even though she has attempted to contact him at his grandmother's home. The applicant has written letters to her son but has received no response from him. She is uncertain as to whether he has received her letters.
5. The absence of any contact with her son for nearly one year has caused the applicant significant distress. She states that she feels "extremely sad and miserable". She has been unable to speak to him and has heard nothing about his progress over the last year. The applicant acknowledges that she has not been a good role model, but, unsurprisingly, she deeply misses her son and is distressed by the lack of contact. Upon her release from custody, the applicant is looking forward to being part of her son's life once more.
6. I accept that the absence of contact with her youngest son for a period of approximately 12 months has caused the applicant a great deal of anguish. Not only has she had no direct contact with him but is uncertain as to whether he is aware of her attempts to contact him.
7. The objective seriousness of the offences, particularly having regard to the applicant's role as principal, together with the relevant purposes of sentencing, warrant the aggregate sentence that was imposed on the applicant. An aggregate sentence of 7 years imprisonment, having regard to the extent of the applicant's criminality, is appropriate in all the circumstances. Furthermore, I am not of the view that the indicative sentences should be varied. Each indicative sentence properly reflects the appropriate sentence that would have been imposed for each offence under separate sentences.
8. The sentencing judge made a finding of special circumstances, although the statutory ratio was varied only to a very modest degree. I am satisfied, given the material relied upon on re-sentencing, that the emotional and psychological distress caused by the total separation from her youngest son, is ongoing and likely to continue while she serves her term of imprisonment. Furthermore, I take into account a finding that the applicant is unlikely to re-offend.
9. While the aggregate term of imprisonment properly reflects the extent of the applicant's criminality, on re-sentence, I am of the view that the non-parole period should be reduced to reflect the finding of special circumstances, albeit resulting in a further variation of the statutory ratio. I am satisfied that the non-parole period should be reduced by six months.
10. Accordingly, I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant by Latham ADCJ in the District Court on 27 May 2022 is set aside, in lieu thereof: 1. Impose an aggregate sentence of 7 years imprisonment to commence on 3 February 2022 and expire on 2 February 2029. 2. Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 4 years and 6 months imprisonment. 3. Specify that the earliest date the applicant will be eligible to be released on parole is 2 August 2026.

Endnotes

1. Jason Borkowski Report, Forensic Psychologist (12 May 2022) (Borkowski Report) at 10.
2. Remarks on Sentence (ROS) at 8.
3. Ibid.
4. Borkowski Report at 10.
5. Transcript, dated 20 May 2022, at 10-11. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2023