R v Li

R v Li - [2020] NSWSC 59 - NSWSC 2020 case summary — Zoe

History of the matter

The primary documents establish the following thumbnail chronology.
On 1 August 2008, the applicant was sentenced in the County Court of Victoria by his Honour Judge Gullaci for the offence (against the laws of that State) of trafficking in a commercial quantity of a drug of dependence. The maximum penalty was imprisonment for 25 years.
Mr Keng Chuan Koh was the co-offender of the applicant, and I shall describe him as such henceforward. Judge Gullaci in his remarks on sentence (VIC ROS) recounted that the co-offender had been sentenced by a different County Court judge on 12 November 2007.
In a nutshell, the facts underpinning the offence of the applicant in Victoria were as follows. The applicant and the co-offender were driving to Melbourne from Sydney, in separate vehicles, when the co-offender stalled his HiAce van at the intersection of Melbourne Road and Victoria Street, North Geelong. Victoria Police arrived. After speaking to both the applicant and co-offender, they discovered 12 cardboard boxes in the rear of the van, which contained 385 kilograms of MDP2P, the principal precursor to MDMA (known informally as ecstasy). The plea of guilty of the applicant was entered on the basis that he and the co-offender had engaged in a joint criminal enterprise in Victoria with regard to trafficking that precursor.
In the VIC ROS, Judge Gullaci stated that "the Crown does not differentiate between your role and that of [the co-offender]" and later reiterated that concession (VIC ROS [5] and [11]).
His Honour also explicitly recorded that the Crown had conceded that the applicant and the co-offender had "played a similar role in this trafficking": at [9].
Similarly, at [12] of the same document, Judge Gullaci found that the applicant's "personal circumstances are similar to that of [the co-offender] and the Crown conceded that during the plea hearing".
The co-offender had been sentenced to a head sentence of 6 years with a non-parole period of 4 years. In the event, the applicant received a head sentence of 6 years 6 months with a non-parole period of 4 years 6 months.
I interpolate that the applicant has no complaint about his Victorian sentence; it has expired in its entirety in any event; and finally I have no jurisdiction to deal with it, in accordance with s 79(3) of the Act.
Subsequently, both the co-offender and the applicant were sentenced for a further shared offence in New South Wales. That was after each of them had been transferred from Victoria to this State so that they could be dealt with by the criminal justice system here. The offence here pertained to a remarkably large quantity of the same prohibited precursor (itself classified as a prohibited drug) to the manufacture of MDMA.
The co-offender pleaded guilty to knowingly taking part in the supply of a large commercial quantity of a prohibited drug, contrary to our Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA). The maximum penalty was and is life imprisonment, and there was and is also a standard non-parole period of 15 years. The large commercial quantity of that substance is currently 500 grams. In fact, the offence involved over 2,200 kilograms of the precursor; patently, an enormous amount, capable of generating vast illicit profits.
On 10 June 2011, Judge Woodburne SC sentenced the co-offender in the District Court of New South Wales to a head sentence of imprisonment for 16 years 6 months with a non-parole period of 11 years 10 months. That sentence was expressed to commence two years after the Victorian sentence had commenced. Amongst other things, her Honour found that the co-offender should receive a 25% discount for the utilitarian value of his early plea of guilty.
On 10 August 2012, the same sentencing judge sentenced the applicant. The same offence with the same maximum penalty and standard non-parole period had been the subject of a late plea of guilty by him. The same quantity of the precursor was involved. A document entitled "Agreed Facts" was placed before her Honour; the copy placed before me is signed by neither party, but I infer that the tendered copy was signed. It recounts a number of acts committed by the applicant and the co-offender, pursuant to the joint criminal enterprise in this State.
The facts of the New South Wales offending followed on from the Victorian offences. Subsequent to the arrest of the applicant and the co-offender in Victoria, NSW Police obtained a warrant to search a factory unit in Castle Hill, in the north-western suburbs of Sydney. There they found 386 containers holding 2,272.612 kilograms of MDP2P.
According to the "Agreed Facts", the applicant activated the "988 phone service", which was used in the criminal enterprise, four days prior to the arrival of the co-offender in Australia. The applicant made inquiries about the E15 factory unit, the premises which were used to store the prohibited drugs. He paid the $137 registration fee for the jointly registered business name, the same business name that was used to rent the premises. He paid the owner of the premises $2,100 to rent the factory unit. The key to the premises was collected and retained, until arrest, by the applicant.
According to the same document, the co-offender went with the applicant to fill out a business registration form. It was under the co-offender's name, and it was his signature that appeared on the form. The co-offender attended the E15 factory unit with the applicant when they were viewing the premises. Having said that, it was the applicant who "did all the talking" with the owner of the premises. The co-offender rented the van containing the MDP2P under his name, and drove it to Victoria.
In her remarks on sentence (NSW ROS), Judge Woodburne recounted the agreed facts in summary form. In determining the role of the applicant in the joint criminal enterprise, and in comparing it to the role of the co-offender for orthodox parity purposes, her Honour recounted that defence counsel had made detailed factual submissions about the questions. She also recounted that "[o]n behalf of the Crown it was submitted that [the applicant's] involvement was greater than [the co-offender], that [the applicant] was higher in the hierarchy": NSW ROS p 23.6. Her Honour went on to set out the aspects of the agreed facts to which the Crown pointed in support of that contention.
Thereafter, commencing at NSW ROS p 24.4, her Honour referred to five factors pertaining to the activities of the applicant within the joint criminal enterprise, all of them derived from the agreed facts. They were as follows.
First, the applicant was in possession of the mobile phone that played an important role in the joint criminal enterprise. Not only that, it had been activated within Australia before the co-offender arrived in this country.
Secondly, it was true that both men went to the branch of the Department of Trading and jointly filled out the false business registration form for the name used to rent the storage premises, and it was the co-offender who signed it. Having said that, the mobile phone number supplied on the form was found to be connected with a phone in the possession of the applicant. Not only that, it was the applicant and not the co-offender who paid the registration fee.
Thirdly, with regard to the particular arrangements preceding the rental of the storage premises, it was the applicant who rang the owner and made inquiries about its size and the rental sum. Although both offenders thereafter attended, it was the applicant who spoke to the owner about the details of the rental. Not only that, it was the applicant who paid over $2,000 in cash for the rental of the premises.
Fourthly, on a later date, it was the applicant who collected the key for the storage unit. On that occasion, it was the applicant who provided the owner of the premises with a piece of paper containing the false company name and the false name of an individual. The document also contained the mobile phone number that was connected with the mobile phone subsequently found in the possession of the applicant. On that occasion, the co-offender was not present.
Fifthly and finally, it was the applicant who collected the key prior to the delivery of the shipping container inside of which the huge amount of prohibited precursor had been secreted. Furthermore, the applicant retained the crucial key, because it was found to be in his possession on 18 December 2006.
Ultimately with regard to the question of roles, her Honour said: "Whilst 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, it is apparent that they acted jointly in organising and providing the factory unit. They each played an integral part in the scheme. On the established facts, the offenders' involvement was limited to several days over December 2006. There is no evidence to establish that Mr Li had any greater role than that established by the facts already set out." (NSW ROS p 25-26, emphasis added)
Later, her Honour remarked: "I have had regard to the sentence imposed upon the co-offender Mr Koh, in light of the parity principle. I have already recorded that each played an integral role in the offence, albeit that Mr Li's role and level of participation was greater than that of Mr Koh, although not substantially so." (NSW ROS p 34-35, emphasis added)
Subjectively, however, the sentencing judge found that the position of the applicant was more favourable than that of the co-offender. The reasons for that finding are detailed at NSW ROS p 35, and include the fact that, whilst the applicant had no criminal record, the co-offender did, and it was not insignificant.
In the event, despite the fact that the applicant at the time of the offending was a mature man of age fifty, and the co-offender in contrast was aged twenty-seven, her Honour adopted an identical head sentence starting point for each of 22 years.
After having applied the discount of 10%, and with some rounding down, her Honour imposed a head sentence of imprisonment for 19 years 6 months, with a non-parole period of 12 years 3 months upon the applicant. That head sentence was arrived at by way of a lesser discount of 10%, awarded for a plea that (as I have said) was entered later than that of the co-offender.
The New South Wales sentence of the applicant commenced two years three months after his Victorian sentence commenced; her Honour remarked that she proposed, by that very slight differentiation of three months, to reflect the fact that the applicant had received a slightly longer sentence in Victoria than the co-offender.
The co-offender sought leave to appeal against his sentence to the Court of Criminal Appeal of New South Wales: Koh v R [2013] NSWCCA 287. Three grounds of appeal were maintained: that the standard non-parole period had been taken into account erroneously; that a finding about objective seriousness had not been open; and that the sentence imposed was manifestly excessive. On 22 November 2013, an application for extension of time to appeal against sentence was refused, on the basis that no ground had merit; the Court contingently found that even if a ground had been upheld, no lesser sentence would have been warranted in law.
The applicant also sought leave to appeal against sentence: Li v R [2014] NSWCCA 18. He was represented by senior counsel well-known for his long expertise with regard to criminal appeals. Three grounds of appeal were relied upon: that the sentencing judge failed to determine the objective seriousness of the offence; that there was an error in the application of the parity principle; and that there was error in the application of the principle of totality. On 26 February 2013, leave to appeal was granted, but the appeal was dismissed.
It is noteworthy that in the summary of the submissions of senior counsel in the judgment, it is nowhere recounted that a submission had been made that the finding of the sentencing judge that the role of the applicant was somewhat more substantial than that of the co-offender was not reasonably open. Rather, the submission was a more refined doctrinal criticism of the approach of the sentencing judge to the assessment of role as opposed to position within the criminal hierarchy: see [20] - [30].
Subsequently, the applicant sought an inquiry into his sentence in accordance with the Act. On 28 May 2018, that application was dismissed by Harrison J: Li v Attorney General for New South Wales [2018] NSWSC 674. The bases upon which review was sought were quite similar to those placed before me.
Thereafter the applicant sought judicial review of that dismissal: Li v Attorney General for New South Wales [2019] NSWCA 95. On 3 May 2019, the New South Wales Court of Appeal dismissed, by majority, that application.
To conclude this sketch, the fresh application placed before me is dated 12 August 2019, the submissions of the respondent were filed on 2 October 2019, and the submissions in reply of the applicant were filed on 4 November 2019.

[4]

Asserted bases for review

The written submissions of the applicant are lengthy. They are also repetitive and discursive (because the applicant is not a lawyer, I make no criticism of those aspects). They are also grammatically unorthodox, and a little hard to understand (I infer that English is not the first language of the applicant, and of course I make no criticism of those attributes of his written submissions either).
I believe that his arguments for review of the sentence can, with those caveats as to my comprehension, be reduced to the following propositions.
First, the applicant makes no attempt to go behind the criminal activities of both men spoken of in the agreed facts placed before Judge Woodburne. But the so-called inferences the sentencing judge drew from those facts - in particular, the assessment that the role of the applicant was somewhat greater than that of the co-offender with regard to the New South Wales offence - featured a denial of procedural fairness, were not reasonably open, and (as inferences to be drawn from a combination of circumstances) could only have been drawn if proven, beyond reasonable doubt, to be the only available inference.
Secondly, the findings about comparative roles made in the County Court of Victoria and the District Court of New South Wales are disjunctive. The fact is that all of the offending, looked at globally, was part of an overarching joint criminal enterprise in which the two men, amongst others, were engaged. The previous finding about the equivalence of their roles made in the County Court should have been replicated in the District Court.
Thirdly, if those two propositions are correct, and bearing in mind that the subjective features of the applicant were found to be more favourable than those of the co-offender, then the applicant has indeed suffered erroneous disparity with regard to the sentence imposed in New South Wales.
Turning to the submissions to the contrary, counsel for the respondent submitted at the threshold that, because these propositions are repetitive of those placed before Harrison J, and there is no fresh material relied upon by the applicant, I should decline to deal with them on the merits, in accordance with s 79(3)(b) of the Act. In the alternative, counsel engaged with the submissions of the applicant substantively and in detail, and submitted that all of them should be rejected.

[5]

Determination

I shall deal with the threshold question first.
In the circumstances, rather than peremptorily dismissing the application on the asserted basis that it is repetitive and there is no fresh material put forward by the applicant, I propose to deal with it on its merits. Having said that, because much of what the applicant has written is wrong as a matter of law (yet again, I make no criticism of him personally), I shall be succinct in my analysis.
As for the first proposition of the applicant, I have recounted the salient portions of the agreed facts about the activities of each man underpinning the New South Wales offence, the summary that her Honour made of them, the five particular aspects of the admitted conduct of the applicant to which the sentencing judge gave weight, and the findings at which her Honour arrived. The ultimate finding - that the role of the applicant was somewhat greater than that of the co-offender - was perfectly open on the undisputed facts placed before her Honour. Indeed, in light of the contrasts in the acts of the two men in this State that I have outlined, that finding was more likely than not, perhaps very likely indeed. That part of the first proposition is unsustainable.
So, in my opinion, is the related proposition that the applicant was denied procedural fairness with regard to the determination of the question of comparative roles: apart from anything else, the NSW ROS explicitly recount the contrary submissions about the question that counsel then appearing for the applicant had made.
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.
Separately, I am fortified in my negative view of this first proposition that, as I have recounted, in the Court of Criminal Appeal, it was not submitted by senior counsel for the applicant that the findings about comparative role were not open to the assessment of the sentencing judge; rather, the complaint was that the mode of analysis undertaken by the sentencing judge was incorrect, not the outcome of that analysis.
The first proposition does not lead me to the opinion that "it appears that there is a doubt or question…as to any mitigating circumstances in the case or as to any part of the evidence in the case", to use the words of s 79(2) of the Act. Nor does it lead me to experience a sense of doubt and unease about the sentence imposed upon the applicant, that being the judicial elucidation of the test that I must apply in an application such as this, in accordance with the decisions of Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 and Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251.
As for the second proposition of the applicant, 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. In particular, the Victorian offence focused on the joint possession of the quantity of the precursor that was detected in Geelong. In sharp contrast, the New South Wales offence focused upon the quantity of the precursor detected in Castle Hill, many hundreds of kilometres away.
In all of those circumstances, the favourable finding of equivalence of role made in the VIC ROS is irrelevant to the validity of the unfavourable finding of somewhat greater role made in the NSW ROS. There is no legal or evidential disjunction between the two of them.
Because I am affirmatively satisfied that it is legally incorrect, the second proposition of the applicant establishes neither the statutory test, nor its judicial elucidation.
Thirdly, because the third proposition is founded upon the success of the first and second propositions, it must also fail. And I am fortified in that view by the fact that a general ground of erroneous disparity argued by senior counsel in the Court of Criminal Appeal failed almost exactly seven years ago.
Separately, stepping back from the particular rejected contentions of the applicant, and reflecting generally for myself upon the sentences imposed upon the applicant and the co-offender in this State (including their degree of partial concurrence with, and accumulation upon, the Victorian sentence imposed on each man), I detect no erroneous disparity here.

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (7)

Cited By (2)