Li v R [2014] NSWCCA 341

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Li v R [2014] NSWCCA 341 Hearing dates: 13 February 2014 Decision date: 26 February 2014 Before: Hoeben CJ at CL at [1] Schmidt at [2] Barr AJ at [3] Decision: Grant leave to appeal Dismiss the appeal Catchwords: CRIMINAL LAW - sentence appeal - knowingly take part in the supply of a prohibited drug MDP2P - whether sentencing judge determined applicant's role in syndicate - parity of sentencing - whether applicant had justifiable sense of grievance - whether sentencing judge erred in applying parity principle - whether sentencing judge erred in applying totality principle. Cases Cited: Director of Public Prosecutions (C'wealth) v Gregory [2011] VSCA 145; (2011) 211 A Crim R 147 Tyler and Chalmers v R [2007] NSWCCA 247; (2007) 173 A Crim R 458) Category: Principal judgment Parties: Patrick Li - Applicant Regina - Crown Representation: Counsel: S Odgers SC - Applicant S Herbert - Respondent

Solicitors: Audix Legal - Applicant Solicitor for Public Prosecutions - Respondent File Number(s): 2010/23470 Decision under appeal Court or tribunal: District Court Date of Decision: 10 August 2012 Before: Woodburne SC DCJ File Number(s): 2010/23470

JUDGMENT

The Application 1. HOEBEN CJ at CL: I agree with Barr AJ 2. SCHMIDT J: I agree with Barr AJ 3. BARR AJ: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant, Patrick Li, pleaded guilty to one count of knowingly taking part in the supply of a prohibited drug, 3 4 - Methylenedioxy-phenyyl -2-propanone, known as MDP2P, in an amount of 2,217.612kg, being an amount not less than the large commercial quantity for that drug. Woodburne SC DCJ sentenced the applicant to imprisonment and set a non-parole period of 12 years 3 months and a balance of term of 7 years 3 months. At the time of sentence the applicant was serving a sentence imposed in the County Court of Victoria for trafficking in a drug of dependence in a quantity not less than the commercial quantity. Her Honour set the applicant's sentence to commence on a day 2 years 3 months after the commencement of the Victorian sentence. The resulting aggregate sentence was of 21 years 9 months, comprising a non-parole period of 14 years 6 months and a balance of term of 7 years 3 months. 4. A co-offender, Keng Chuan Koh, was charged with the same offence. He pleaded guilty and on 10 June 2011 her Honour sentenced him to imprisonment. Her Honour set a non-parole period of 11 years 10 months and a balance of term of 4 years 8 months. Like this applicant, Koh had been convicted in Victoria of trafficking in a drug of dependence in a quantity not less than the commercial quantity and was already serving a sentence imposed in the County Court of Victoria. Her Honour ordered his sentence to commence on a day 2 years after the commencement of the Victorian sentence. As a result, Koh's aggregate sentence comprised a non-parole period of 13 years 10 months and a balance of term of 4 years 8 months. Koh applied for an extension of time within which to seek leave to appeal to this Court against her Honour's sentence. If permitted, he would have relied on these grounds, namely - 1. Her Honour erred in the way the applicable standard non-parole period was taken into account; 2. It was not open to her Honour to assess the offence as "slightly above the mid range of objective seriousness; and 3. The sentence is manifestly excessive. 1. On 14 October 2013 this Court refused Koh's application. In doing so it recorded its opinion that the grounds of appeal lacked merit.