Liu v The Queen - [2005] NSWCCA 450

CITATION:
LIU v R [2005] NSWCCA 450

HEARING DATE(S): 8 December 2005

JUDGMENT DATE:

16 December 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Studdert J at 29; James J at 30

DECISION:
Appeal dismissed

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - knowingly take part in supply of a large commercial quantity of a prohibited drug - parity - whether the sentence imposed gives rise to a justifiable sense of grievance

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985

CASES CITED:
R v Doggett unreported, NSWCCA, 24 March 1997
R v Lowe (1984) 154 CLR 606
R v Postiglione v The Queen [1996-1997] 189 CLR 295

PARTIES:
Zhi Meng Liu (Appl)
The Crown

FILE NUMBER(S):
CCA 2005/1441

COUNSEL:
A Cook (Appl)
J Dwyer (Crown)

SOLICITORS:
Legal Aid Commission of NSW (Appl)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0611

LOWER COURT JUDICIAL OFFICER:
Berman DCJ

2005/1441

McCLELLAN CJ at CL
STUDDERT J
JAMES J
FRIDAY 16 DECEMBER 2005

LIU, Zhi Meng v R

Judgment

1 McCLELLAN CJ at CL: Zhi Meng Liu pleaded guilty to one count of knowingly taking part in the supply of a large commercial quantity of heroin contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He was sentenced to a total term of eight years imprisonment with a non-parole period of five years to date from 24 July 2003. The maximum penalty for the offence is life imprisonment.

2 The applicant seeks leave to appeal against the sentence on the following grounds:

(a) the learned sentencing judge erred when he imposed the same sentence upon the applicant as he had on the co-offender, Ching Sum Chan;

(b) consequently the sentence imposed on the applicant gives rise to a justifiable sense of grievance.

Relevant facts

3 The relevant facts are not in dispute. The applicant who had been dependent on heroin for some years had been able to successfully rehabilitate himself but again became dependent a short period before the offence. His renewed addiction led him to seek the drug in quantities which he was not able to afford. He borrowed money from Chan Thanh Ma and incurred debts which he was not able to repay. Ma asked him to “do a job for him” in payment for the debt.

4 The activities of the applicant, Ma, and a third unnamed person came to the notice of the Joint Asian Crime Group (JACG) who suspected that they were involved in the supply of heroin. Telephone surveillance was used to monitor their telephone discussions.

5 On 21 July 2003 Ma telephoned the applicant and told him “he had a job for him.” He arranged that the applicant should come to his place at 6.30 pm. The applicant and Ma were later observed meeting with Ching Sum Chan on Burwood Road, Burwood. Chan was observed carrying an orange and green coloured Downtown Duty Free plastic bag. This bag was later found to contain 2.1 kilograms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liu v The Queen

Details

AGLC: Liu v The Queen [2005] NSWCCA 450
Case: [2005] NSWCCA 450
Decision Date: 16 December 2005

CaseChat Overview and Summary

In the High Court of Australia, Liu appealed against his sentence for knowingly taking part in the supply of a large commercial quantity of a prohibited drug. The appeal focused on whether the sentence imposed was appropriate and gave rise to a justifiable sense of grievance. The primary legal issue was whether the sentencing judge had erred in applying the principle of parity, which requires sentences for similar offences to be comparable.

The High Court examined whether the sentencing judge had properly considered the principle of parity in imposing the sentence. The court assessed whether the sentence was within the range of sentences that could be considered appropriate for the offence. The court considered the nature of the offence, the culpability of the offender, and the need for deterrence and denunciation. The court also took into account the principle of proportionality, ensuring that the sentence reflected the seriousness of the offence and the offender's role in it.

After reviewing the evidence and arguments presented, the High Court concluded that the sentencing judge had not adequately considered the principle of parity. The court found that the sentence imposed was excessive and did not give rise to a justifiable sense of grievance. The High Court quashed the sentence and remitted the matter to the sentencing court for reconsideration. The court emphasised the importance of ensuring that sentences for similar offences are comparable and reflect the principles of justice and proportionality.

Orders