R v Fu

Case [2022] NSWDC 381 26 August 2022

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District Court

New South Wales

Medium Neutral Citation: R v Fu [2022] NSWDC 381
Hearing dates: 22 August 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 The offender is convicted.
2 In relation to the State offence, I impose a term of imprisonment of 9 months with a non-parole period of 6 months to date from 20 April 2021. The non-parole period will expire on 19 October 2021 and the head sentence will expire on 19 January 2022.
3 In relation to the Federal offence, I impose a term of imprisonment of 6 years to date from 20 July 2021 and expire on 19 July 2027. I fix a non-parole period of 3 years that will expire on 19 July 2024. The offender will be eligible to be released on parole on 19 July 2024.

Catchwords:
CRIME — Drug offences — Commonwealth offences — Import/Export commercial quantity of border-controlled prohibited drug
CRIME — Firearms offences — Unauthorised use/possession of pistol
CRIME — Money laundering — Dealing with money suspected of being proceeds of crime

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code (Cth)
Firearms Act 1996 (NSW)

Cases Cited:
Bugmy v The Queen (1990) 169 CLR 525
Cameron v The Queen (2002) 209 CLR 339
Danial v R [2008] NSWCCA 15
Deakin v The Queen (1984) 58 ALJR 367
Hili v The Queen (2010) 242 CLR 520
Johnson v The Queen (2004) 78 ALJR 616
Power v The Queen (1974) 131 CLR 623
R v El Karhani (1990) 21 NSWLR 370
R v Nassir [2020] NSWCCA 88
R v Nguyen (2010) 205 A Crim R 106
R v Olbrich (1999) 199 CLR 270
Xiao v R (2018) 96 NSWLR 1

Category: Sentence
Parties: Regina
Baiqi Fu (Offender)
Representation:
Counsel:
A N Williams (Crown)
G Jauncey/ I Tam (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Lawside Lawyers (Offender)

File Number(s): 21/110368
Publication restriction: None

Judgment

Baiqi Fu (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

between 2 December 2020 and 10 May 2021 jointly with others, importing a commercial quantity of border controlled drugs contrary to s 11.2A(1), s 307.1(1) and s 311.4(1) Criminal Code (Cth). The maximum penalty for the offence is life imprisonment; and

possess an unauthorised pistol contrary to s 7(1) Firearms Act 1996 (NSW). The maximum penalty for the offence is 14 years imprisonment and parliament has prescribed a standard non-parole period of 4 years.

The offender also asks the Court to take into account an offence of dealing in with money suspected to be the proceeds of crime exceeding $100,000 contrary to s 400.9(1) Criminal Code (Cth), on a s 16BA Crimes Act 1914 (Cth) schedule, when passing sentence for the importation offence.

Approach to Sentencing

To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable…

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 R v Fu

Details

AGLC: R v Fu [2022] NSWDC 381
Case: [2022] NSWDC 381
Decision Date: 26 August 2022

CaseChat Overview and Summary

The defendant, Fu, was charged with drug, firearms, and money laundering offences. The matter was heard in the Supreme Court of Queensland. The charges stemmed from an investigation into the importation of a commercial quantity of prohibited drugs, the unauthorised possession of a firearm, and the handling of money suspected to be proceeds of crime. The defendant pleaded guilty to all charges and the matter proceeded to sentencing.

The court was required to determine the appropriate sentences for the defendant's crimes, considering the nature and circumstances of the offences. The defence submitted that the defendant's role in the crimes was relatively minor and that he had shown remorse. The prosecution argued for substantial sentences due to the seriousness of the crimes and the quantities involved. The court considered the principles of sentencing, including the need for punishment, deterrence, and rehabilitation.

The court found that the defendant's involvement was significant, particularly in relation to the drug importation and firearms offences. The court considered the defendant's remorse and his cooperation with authorities, but emphasised the seriousness of the crimes. The court imposed a sentence of 9 months imprisonment for the state offence, with a non-parole period of 6 months. For the federal offence, the court imposed a sentence of 6 years imprisonment, with a non-parole period of 3 years. The sentences were to run concurrently, and the court ordered the defendant to be eligible for parole release on 19 July 2024.

The court made orders for the defendant to be imprisoned and specified the dates for the expiry of the non-parole and head sentences. The offender is to serve a term of imprisonment of 9 months with a non-parole period of 6 months for the state offence, and a term of imprisonment of 6 years with a non-parole period of 3 years for the federal offence. The sentences are to commence from specified dates and the offender will be eligible for parole release on 19 July 2024.

Orders

Orders of the court

1 The offender is convicted.

2 In relation to the State offence, I impose a term of imprisonment of 9 months with a non-parole period of 6 months to date from 20 April 2021. The non-parole period will expire on 19 October 2021 and the head sentence will expire on 19 January 2022.

3 In relation to the Federal offence, I impose a term of imprisonment of 6 years to date from 20 July 2021 and expire on 19 July 2027. I fix a non-parole period of 3 years that will expire on 19 July 2024. The offender will be eligible to be released on parole on 19 July 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Fu [2022] NSWDC 381

Most Recent Citation

R v Abbas [2023] NSWDC 644

Cases Citing This Decision

R v Abbas [2023] NSWDC 644
Citation 1 (Para 64)

…In R v Fu [2022] NSWDC 381 the offender pleaded guilty to what appears to have been a rolled-up charge of importing a commercial quantity of border-controlled drugs during an extended period between December 2020 and May 2021. The drugs were imported through the post and involved 249 grams of pure heroin, 500 grams…

See all citing cases →

Cases Cited

R v Kassir [2020] NSWCCA 88
Citation 1 (Para 7)

…encing serious Federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J) and the comments of Bathurst CJ in R v Nassir [2020] NSWCCA 88 at [100].…
Xiao v R [2019] NSWCCA 4
Citation 2 (Para 6)

…ess to facilitate course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14] and Xiao v R (2018) 96 NSWLR 1 at [279]-[280]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is…
Hili v The Queen [2010] HCA 45
Citation 3 (Para 8)

…Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Qu een (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).…
Danial v R [2008] NSWCCA 15
Citation 4 (Para 6)

…ess of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]–[28]. The Crown case was a strong one. The offender’s plea has saved the need for witnesses to be called at trial, and the utilitarian value of…
Johnson v The Queen [2004] HCA 15
Citation 5 (Para 5)

…of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of Federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].…
Cameron v the Queen [2002] HCA 6
Citation 6 (Para 6)

…rt must consider the offender’s willingness to facilitate course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14] and Xiao v R (2018) 96 NSWLR 1 at [279]-[280]. In assessing the willingness of the offender to facilitate the course of justice the strength of…
R v Olbrich [1999] HCA 54
Citation 7 (Para 3)

…oubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).…
Bugmy v The Queen [1990] HCA 18
Citation 8 (Para 8)

…ion of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Qu een (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).…
Deakin v The Queen [1984] HCA 31
Citation 9 (Para 8)

…levant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Qu een (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J…
Power v The Queen [1974] HCA 26
Citation 10 (Para 8)

…fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Qu een (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gu…

Legislation Cited

Crimes Act 1914 (Cth)
2 mentions (from Para 2)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 9)
Criminal Code (Cth) Firearms Act 1996 (NSW)
1 mention
Firearms Act 1996 (TAS)
1 mention (from Para 2)
Part IB Crimes Act 1914 (Cth)
1 mention (from Para 4)

Medium Neutral Citation:	R v Fu [2022] NSWDC 381
Hearing dates:	22 August 2022
Date of orders:	26 August 2022
Decision date:	26 August 2022
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The offender is convicted. 2 In relation to the State offence, I impose a term of imprisonment of 9 months with a non-parole period of 6 months to date from 20 April 2021. The non-parole period will expire on 19 October 2021 and the head sentence will expire on 19 January 2022. 3 In relation to the Federal offence, I impose a term of imprisonment of 6 years to date from 20 July 2021 and expire on 19 July 2027. I fix a non-parole period of 3 years that will expire on 19 July 2024. The offender will be eligible to be released on parole on 19 July 2024.
Catchwords:	CRIME — Drug offences — Commonwealth offences — Import/Export commercial quantity of border-controlled prohibited drug CRIME — Firearms offences — Unauthorised use/possession of pistol CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code (Cth) Firearms Act 1996 (NSW)
Cases Cited:	Bugmy v The Queen (1990) 169 CLR 525 Cameron v The Queen (2002) 209 CLR 339 Danial v R [2008] NSWCCA 15 Deakin v The Queen (1984) 58 ALJR 367 Hili v The Queen (2010) 242 CLR 520 Johnson v The Queen (2004) 78 ALJR 616 Power v The Queen (1974) 131 CLR 623 R v El Karhani (1990) 21 NSWLR 370 R v Nassir [2020] NSWCCA 88 R v Nguyen (2010) 205 A Crim R 106 R v Olbrich (1999) 199 CLR 270 Xiao v R (2018) 96 NSWLR 1
Category:	Sentence
Parties:	Regina Baiqi Fu (Offender)
Representation:	Counsel: A N Williams (Crown) G Jauncey/ I Tam (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Lawside Lawyers (Offender)
File Number(s):	21/110368
Publication restriction:	None