Li v R [2023] NSWCCA 112

Li v R [2023] NSWCCA 112

The sentencing judge erred because evidence and written submissions specifically raised the applicant's unlikelihood of re-offending, the Crown did not challenge that evidence, and the reasons did not make it evident that this separate mitigating factor under s 21A(3)(g) had been taken into account. The finding of reasonable prospects of rehabilitation did not, in this case, encompass a finding that the applicant was unlikely to re-offend. On re-sentence, the aggregate sentence of 7 years imprisonment remained appropriate, but the non-parole period was reduced by six months to reflect special circumstances and the finding that the applicant was unlikely to re-offend.

Jurisdiction
Australia
Judgment Date
24 May 2023
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court of New South Wales
Outcome
Leave to appeal granted; appeal allowed; sentence set aside; applicant re-sentenced to the same aggregate term with a reduced non-parole period.
Legal Topics
['supply of Prohibited Drugs' 'directing and Participating in a Criminal Group' 'likelihood of Re Offending' 'prospects of Rehabilitation' 'special Circumstances' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['supply of Prohibited Drugs' 'directing and Participating in a Criminal Group' 'likelihood of Re Offending' 'prospects of Rehabilitation' 'special Circumstances' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Aggregate Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to consider and take into account the applicant's likelihood of re-offending under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW)." "Whether the sentencing judge's finding of reasonable prospects of rehabilitation encompassed a finding that the applicant was unlikely to re-offend." 'Whether the applicant should be re-sentenced and whether the non-parole period should be reduced for special circumstances.']

Ratio Decidendi

The sentencing judge erred because evidence and written submissions specifically raised the applicant's unlikelihood of re-offending, the Crown did not challenge that evidence, and the reasons did not make it evident that this separate mitigating factor under s 21A(3)(g) had been taken into account. The finding of reasonable prospects of rehabilitation did not, in this case, encompass a finding that the applicant was unlikely to re-offend. On re-sentence, the aggregate sentence of 7 years imprisonment remained appropriate, but the non-parole period was reduced by six months to reflect special circumstances and the finding that the applicant was unlikely to re-offend.

Court Disposition

Leave to appeal granted; appeal allowed; sentence set aside; applicant re-sentenced to the same aggregate term with a reduced non-parole period.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' 'The sentence imposed on the applicant by Latham ADCJ in the District Court on 27 May 2022 is set aside.' 'Impose an aggregate sentence of 7 years imprisonment to commence on 3 February 2022 and expire on 2 February 2029.' 'Pursuant to s 44(2A) of the Crimes...