Li v R (Cth)

HOEBEN CJ at CL:

The applicant engaged in the attempted importation of 264.37kg of ephedrine and 118.3kg of methamphetamine (both above the commercial quantity threshold). A “Mr Lee” (Lee), also known as Ah Cheng or Ah Qiang, based in China, was the “boss or overall organiser of the operation”. The applicant was found to be the Australian based importer. Her co-offenders, Evan Kung Han Wong (Wong) and Chi Wai Lau (Lau), travelled from Hong Kong to Australia to extract the secreted drugs and line up sales to domestic purchasers.

The applicant entered custody upon her arrest on 21 January 2016. She was then aged 57. She was aged 60 at the time of sentencing.

On 12 December 2018, Norrish QC DCJ sentenced the applicant as follows:

As can be seen, the applicant’s head sentence consisted of 16 years and 2 months for the attempted import of the methamphetamine (count 1), which commenced after she served two years for the attempted import of ephedrine (count 2), thereby being sentenced to a head sentence of 18 years and 2 months. A single non-parole period (NPP) of 12 years was set amounting to 66 per cent of the head sentence.

Her co-offenders also entered pleas of guilty and were sentenced for the same counts before the applicant was sentenced.

On 21 January 2016, the applicant, Lau and Wong were arrested and charged. On 26 July 2017, the applicant was committed to stand trial in the District Court.

On 5 April 2017, Hosking QC ADCJ sentenced Wong. On 5 May 2017, Hosking QC ADCJ re-opened Wong’s sentence and reduced the NPP from 8 years and 8 months to 7 years and 8 months on the basis that his Honour had overlooked the requirement to set a single non-parole period under s 19AB of the Crimes Act 1914 (Cth). This reduced the NPP as a portion of the effective sentence from 69 per cent to 62 per cent.

On 11 August 2017, Hosking QC ADCJ sentenced Lau. On 17 October 2018, Hosking ADCJ re-opened Lau’s sentence and imposed a single NPP of 8 years and 6 months.

On 29 June 2018 the applicant entered pleas of guilty to both offences. On 12 December 2018, Norrish QC DCJ sentenced the applicant.

On 4 December 2015, the applicant flew from Sydney to Hong Kong and on to Ningbo, China.

Between 10 and 11 December 2015, three consignments were received at Ningbo. On 15 December 2015, the consignments were loaded onto a vessel destined for Sydney.

Between 29 to 30 December 2015, the applicant flew back to Sydney via Hong Kong. On 3 January 2016, the three sea freight containers arrived in Sydney. Secreted within the containers were:

Australian Border Force officers examined and located the substances after arrival. An inert substance was substituted for the drugs. Within a week of the consignment arriving, Wong and Lau flew into Sydney from Hong Kong. The applicant arranged for a freight logistics company to deliver the consignments at various locations and arranged the rental of two storage units at a Kennard’s facility in Kingsgrove.

On 14 January 2016, the applicant took delivery of Consignment 1 at leased warehouse premises in Peakhurst, Sydney (the Peakhurst Warehouse). The container was unloaded by labourers hired by the applicant.

On 15 January 2016, Wong and Lau attended the Peakhurst Warehouse and used power tools to dismantle five stools to access the concealed substance.

On 16 January 2016, Consignment 3 was delivered to a warehouse in Richland Street, Kingsgrove. The majority of the goods were unloaded. Six boxes containing the substituted substance were loaded into the applicant’s car. Another nine boxes were loaded into a “Pantech” truck and taken to a storage unit at Kingsgrove leased by the applicant.

On 17 January 2016, the applicant attended the Peakhurst Warehouse. She unpacked a box containing substituted soup packets from Consignment 3. She placed the packets into a black garbage bag which she put in a large cardboard box within the premises. She loaded several boxes into her car and left.

On 19 January 2016 Wong spoke to the applicant at the Peakhurst Warehouse. He complained about the contents not being as expected and that it appeared the “stuff” had been “replaced”. Wong and the applicant also discussed the intended delivery of 70 bar stools from Consignment 2 to the “tall guy”. The applicant tasted the substituted material from Consignment 3 and said “so bad”. The applicant left the warehouse holding a small bag of substituted substance in her hand.

On 20 January 2016, Wong called the applicant and asked her to meet him at Kingsgrove Kennard’s Storage. Wong had arranged to deliver two stools to the “tall guy” later that day. The applicant met Wong and Lau at the storage facility and gave them access to the unit where 70 bar stools from Consignment 2 were stored. Wong and Lau took two bar stools to their Narwee Hotel while the applicant returned home.

The applicant was arrested on her arrival home. Wong and Lau were arrested after returning to their hotel. Various search warrants were executed. During an interview, the applicant denied any knowledge or involvement in the offences. Lau said he had travelled to Australia from Hong Kong to work for Wong. He had received $1,500 from Wong and did not know how much more he would be paid.

Wong agreed to participate in a controlled operation to deliver the two stools to the “tall guy”. That afternoon, Wong used an encrypted telecommunication application to call Meimei Lin (Lin), the “tall guy”, and arranged to meet him at the Narwee hotel that evening.

Lin stated he would take delivery of the remaining 68 stools from Consignment 2 and asked Wong to contact a third person before delivery that evening. Wong then called a person known to him as “Lee or Chang” and was questioned why he and the applicant had not answered their phones earlier (they were unable owing to their arrest). Wong met Lin that night at the hotel and gave him two bar stools. They also discussed Lin taking delivery of the remaining 68 stools. Lin and his driver were arrested soon afterwards.

The applicant’s co-offenders, Wong and Lau, entered pleas of guilty to the same counts. Lau was aged 51 at the time of sentence. Hosking QC ADCJ sentenced them, before Li was sentenced. The sentences imposed on them were:

His Honour did not find that the applicant travelled to Ningbo in December 2015 to supervise the packaging and preparation of the importation (as contended by the Crown). His Honour did, however, have regard to the evidence of Wong at committal. Wong had identified Lee as his boss. He identified the applicant as someone who was to assist with the importation.

He was to be paid by Lee, not the applicant, for his services. Wong was to be paid $HK500,000 ($AUD80,000) although he did not receive that money. His Honour did not know precisely where the applicant fitted into the import organisation, but understood that she had direct contact with Lee.

His Honour accepted that the applicant played a significant role that was “crucial” to the importation of the three consignments but he did not consider her to be a principal in the sense that she directly organised the importation (that was Lee). However, she was a “principal” in Australia in terms of receiving consignments and she was in contact with the ostensible architect of the importation. Her direct access to the boss meant she had “autonomy of action” which distinguished her from someone typically performing a courier type role.

His Honour noted that the substances were secreted in a “very professional fashion” and that the import itself involved “considerable organisation” in Australia to extract the materials and pass them onto others. This amounted to “sophistication”.

In relation to a Crown submission that the applicant managed the import of the drugs and precursor into Australia, his Honour considered that this was “generally accurate though the actual distribution once in Australia did not fall to her alone but also to Wong assisted by Lau and others who she was not responsible for”.

His Honour found genuine remorse on the part of the applicant and gave her the benefit of a 15 per cent discount for her early plea of guilty.

His Honour also took into account the applicant’s relatively advanced age in that she would be in her early seventies by the time of her release.

The applicant seeks leave to appeal on the sole ground that the sentencing judge erred in fixing the NPP as a proportion of the head sentence.

The applicant submitted that the sentencing judge stated his intention to fix a NPP “roughly” or “approximate” to the proportion fixed for Wong relative to his head sentence (not that of Lau).

The applicant submitted that this should have resulted in the setting of a NPP approximate to 62 per cent of the applicant’s head sentence (i.e. approximately 11 years and 3 months). The applicant submitted that his Honour’s stated intention was not given effect to when the single NPP term was set. The NPP ratio fixed for the applicant amounted to 66 per cent of the head sentence (12 years) which is on a par with the ratio set for Lau (not Wong). The applicant submitted that the resulting difference of nine months was significant, given the applicant’s advanced years. It required that she serve an additional nine months imprisonment before becoming eligible for release to parole.

The applicant submitted that the difference likely resulted from a miscalculation or inadvertence on the part of the sentencing judge. The applicant submitted that there was nothing in the sentencing judgment of Norrish QC DCJ to indicate that his Honour considered a NPP of 66 per cent to be “roughly” equivalent to 62 per cent. The applicant submitted that it was inconceivable that his Honour would have reached a conclusion that a higher ratio than that set for Wong was required in her case, notwithstanding the earlier stated intention.

In support of that proposition, the applicant relied upon the following passage from the sentencing judgment:

The applicant submitted that his Honour’s reference to “foreshadowed” likely was a reference to the following exchange during submissions:

The applicant submitted that the ratio for Wong was in fact 62% but this was not clarified with his Honour.

The applicant also relied upon the following from the sentence judgment:

The applicant submitted that when assessing moral culpability, his Honour clearly considered the applicant to be equally culpable with Wong. Consistent with those observations, his Honour said:

The applicant noted that insofar as totality was concerned, his Honour said:

The applicant noted that his Honour went on to say in the sentence judgment:

The applicant submitted that the single NPP for 12 years amounted to a NPP ratio, relative to the head sentence of 66 per cent which was on a par with that set for Lau (66 percent) but not Wong (62 percent).

The applicant submitted that his Honour was clear in stating his intention to fix a NPP as a percentage of the total sentence, that “roughly” or “approximately” accorded with the proportion fixed for Wong relative to his head sentence (which was 62 per cent) rather than that of Lau (which was 66 percent). The applicant submitted that this should have resulted in the setting of an NPP approximate to 62 percent of the applicant’s head sentence (i.e. 11 years and 3 months).

The applicant submitted that there is nothing in his Honour’s remarks to indicate that he considered a NPP of 66 per cent as being “roughly” equivalent to 62 per cent. The applicant submitted that the setting of a final NPP ratio for her, in excess of that which the sentencing judge indicated that he intended to fix, absent explanation to show that such an outcome was deliberately intended, strongly suggests that an oversight has occurred (See Rothman J (with whom Simpson AJA and Bellew J agreed) in Qoro v R [2020] NSWCCA 276 at [56].

The applicant submitted that if she were successful in demonstrating error by way of inadvertence, it was open to the Court rather than quashing the sentence and engaging in a full resentence exercise, to simply correct the error. This was the approach followed by McCallum J (with whom Bathurst CJ and Hoeben CJ at CL agreed) in Voronov v Regina [2017] NSWCCA 241 at [39] (Voronov).

The respondent submitted that no error had occurred in his Honour’s articulation of the NPP applicable to the applicant, whether by way of inadvertence or miscalculation. In support of that submission, the respondent relied upon the exchanges between the sentencing judge and senior counsel for the applicant in which reference was made to the NPP not exceeding 70 per cent of the overall head sentence (11.12.18 at T 22.40 and AB 356 at [21]). The respondent submitted that the NPP in respect of the applicant was in accordance with that exchange.

The respondent submitted that the NPP imposed on the applicant was in accordance with the NPP imposed on Lau and Wong, i.e. 66.06 per cent for the applicant, 66.66 per cent for Lau and 62 per cent for Wong.

The respondent noted that in the sentence proceedings the only submission made by either party as to the appropriate proportion of the NPP to the head sentence, was that made by senior counsel for the applicant, to which reference has been made. The respondent noted that the submission was to the effect that the NPP should not exceed 70 per cent of the head sentence. The respondent noted that the sentencing judge indicated an intention to accept that submission and also, at least implicitly, indicated a reasonably accurate awareness of the applicable ratios for the NPP imposed on the two co-offenders.

The respondent relied upon the following exchange, which took place between his Honour and senior counsel for the applicant as follows:

The respondent submitted that by reference to that statement of intention, there could be no complaint from the applicant that she did not receive a fair hearing and that counsel for her should have been given an opportunity to be heard about what the sentencing judge was proposing. The respondent submitted that the only submission made in express terms on the subject by counsel was accepted by the sentencing judge and the sentence imposed on the applicant was in accordance with that submission. The respondent submitted that no more detailed indication was required to be given by the sentencing judge.

The respondent submitted that there was no contradiction or incongruity between what his Honour said was his intention in his sentence judgment and the sentence ultimately imposed. To support that proposition, the respondent argued as follows:

I have concluded that his Honour, in sentencing the applicant, was clear that he intended to fix a NPP that equated to that of Wong not Lau. There is in fact no reference to Lau, other than in general terms, in his Honour’s sentence judgment. The comparison which was consistently made is between the part played by the applicant in the criminal enterprise and that of Wong. In that regard, the relevant transcripts of statements by the sentencing judge have been set out in the submissions of the applicant.

The final comment by his Honour on the subject in his sentence judgment is persuasive:

It is difficult to give those clear words a meaning other than that argued for by the applicant. When one has regard to that passage, it is clear that his Honour was well aware of the NPPs fixed in respect of Lau and Wong. His Honour’s awareness was not only as to the length of time involved but as to the percentage of the total sentence.

In addition, there are two strong considerations which favour the applicant’s submission:

It follows from the above that the appeal should be allowed.

This does not end the matter. There was an issue as to whether allowing the appeal would require that a full resentencing exercise be carried out or whether a variation of the NPP applicable to the applicant could be made so as to align the order of the Court with the sentencing judge’s intention. I have concluded, for the reasons set out in Voronov that such a variation can be made without the need to resentence.

Alternatively, since what has occurred involves an error analogous to that identified by the Chief Justice in Lehn v R [2016] NSWCCA 255 (2016) 93 NSWLR 205 at [72], the judgment can be adjusted by correcting that error. It follows that I agree with the conclusion by N Adams J at [66].

For those reasons, I propose the following orders:

N ADAMS J: I agree with the orders proposed by Hoeben CJ at CL. As I recently observed in Tammer-Spence v R [2021] NSWCCA 90 at [72], a ground complaining that a sentencing judge has not given effect to his or her stated intention will be unsuccessful if this Court is satisfied that the result is what the sentencing judge actually intended. In this matter I am satisfied, having considered the portions of the remarks on sentence extracted above by Hoeben CJ at CL, that it was clearly the sentencing judge’s intention to impose a sentence such that the ratio between the non-parole period and head sentence for the applicant was “roughly” similar to Mr Wong rather than Mr Lau. Error has been established.

The question arose during the hearing of this application as to whether this error was the type of error which required this Court to put to one side the sentence of Norrish SC DCJ and exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”). Both counsel accepted that it did not. I accept the joint position of counsel in this matter on the following basis.

In Kentwell French CJ, Hayne, Bell and Keane JJ observed at [42] that not all “…errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion”. The only example given in that case was when a sentence is imposed other than in compliance with s 44(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 a five judge bench sat to consider, inter alia, the question of whether, if an identified error affects only a discrete component of the sentence, an appellate court is nonetheless required to exercise the sentencing discretion afresh, consistent with Kentwell.

In Lehn v R, Bathurst CJ (with whom Beazley P, R A Hulme, Schmidt and Wilson JJ agreed) held that where the sentencing discretion has miscarried in respect of a discrete component of the sentencing process, it is still the duty of the appellate court to exercise the discretion afresh: at [68]-[71], [75]-[78], [80]-[87]. Despite this, it was noted that there may be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. An example provided by Bathurst CJ at [72] was when an arithmetical error has occurred, the extent of which can be properly determined.

I am satisfied that the error in the present case is arithmetical in that the wrong ratio between the non-parole period and head sentence was applied to the applicant’s sentence. On that basis there is no need to re-sentence the applicant. For these reasons I agree with the orders proposed by Hoeben CJ at CL.

I wish to make one further observation. In the course of argument in this matter on the question of the scope of “Kentwell error,” the following exchange took place:

The issue was not developed any further in oral argument as both counsel agreed that it was not necessary to re-exercise the sentencing discretion.

In Sigalla v R [2021] NSWCCA 22 the applicant succeeded on one of his grounds of appeal against sentence. This Court was satisfied that the trial judge erred in holding that the applicant’s lack of remorse and failure to acknowledge his wrongdoing precluded a finding that he had any prospects of rehabilitation. Having found error, Brereton JA (with whom Hoeben CJ at CL and Cavanagh J agreed) referred at [150] to the decision of Sully J in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [100] and went on to find at [151] that:

I understand how the approach taken by the court in Sigalla v R may have led counsel for the Crown to query whether a different approach to the decision of the High Court in Kentwell was being proposed. Despite this, I do not for my part take the decision in Sigalla v R to suggest that any new or different approach is required of this Court in the event of a need to re-sentence an applicant. The scope of the Court’s role is well established and can be found in the decisions of Lehn v R; RO v R [2019] NSWCCA 183 (per Bathurst CJ, Beech-Jones and I) at [79]-[89] and [117]-[123]; and more recently in Mandranis v R [2021] NSWCCA 97 per Simpson AJA at [7] (Garling J and I agreeing).

HIDDEN AJ: I agree with the orders proposed by Hoeben CJ at CL and generally with his Honour’s reasons. However, I would treat the error as a mathematical one of the kind envisaged by Bathurst CJ in Lehn at [72].

I agree with N Adams J that the decision in Sigella v R should not be understood as signalling a departure by this Court from the approach to resentence expounded in Kentwell v The Queen.