District Court
New South Wales
Medium Neutral Citation: R v Leung [2024] NSWDC 671 Hearing dates: 12 December 2024 Date of orders: 12 December 2024 Decision date: 12 December 2024 Jurisdiction: Criminal Before: Neilson DCJ Decision: See pars [84]-[91].
Catchwords: CRIME – SENTENCE - Attempt import commercial quantity of border controlled drug - N,N-Dimethylamphetamine – Offender on tourist visa – Impact of language and cultural differences on whether incarceration onerous.
Legislation Cited: Crimes Act 1914 (Cth), ss 16A(2), 16BA.
Criminal Code Act 1995 (Cth), ss 11.1, 305.3(1), 307.1(1).
Cases Cited: DPP (Cth) v Estrada (2015) 45 VR 286; [2015] VSCA 22.
R v Cheung; R v Choi [2010] NSWCCA 244; (2010) 203 A Crim R 398.
R v Ferrer-Esis (1991) 55 A Crim R 231 at 239.
Texts Cited: Nil.
Category: Sentence Parties: Crown – R (Cth)
Offender – Ka Ho LeungRepresentation: Counsel:
Solicitors:
Crown – Mr Gordan, D.K.
Offender – Mr Terracini, A.
Crown – Office of the Director of Public Prosecutions (Cth).
Offender – Andrews Solicitors.
File Number(s): 2023/00190517 Publication restriction: Nil.
Judgment
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HIS HONOUR: Ka Ho Leung stands for sentence as a consequence of pleading guilty to two offences against the law of the Commonwealth. The first offence is one contrary to ss 11.1 and 307.1(1) of the Criminal Code Act 1995 (Cth). The offence may be shortly described as attempting to import a commercial quantity of a border controlled drug.
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The drug in question is known as N,N-Dimethylamphetamine. The commercial quantity of that drug is 750 grams. The amount which he sought to import was 1,119 grams or 1.49 times the prescribed quantity of a commercial quantity of that drug. That offence carries a maximum penalty of life imprisonment and/or a fine of 7,500 penalty units.
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The second substantive offence which the offender asks me to sentence him is one contrary to s 305.3(1) of the Criminal Code Act 1995 (Cth). The offence may shortly be described as manufacturing a commercial quantity of a controlled drug. The drug in question was again, N,N-Dimethylamphetamine. The amount of that drug was 1.144 kilograms, which is again 1.5 times of the amount of the prescribed commercial amount, namely 750 grams. The maximum penalty for that offence is also imprisonment for life.
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On a schedule, pursuant to s 16BA of the Crimes Act 1914 (Cth), the offender asks me to take into account, when sentencing him for the last offence, an offence of importing a commercial quantity of a border controlled drug. That is the amount of the drug that was used to carry out the manufacture of the commercial quantity of the drug. The maximum penalty for the offence contained on the schedule is, again, imprisonment for life and/or a fine of 7,500 penalty units.
Agreed Facts
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There is a set of agreed facts. The drugs with which the offender was dealing were, as I said, N,N-Dimethylamphetamine (DMA).…
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- AGLC
- R v Leung [2024] NSWDC 671
- Case
- [2024] NSWDC 671
- Decision Date
CaseChat Overview and Summary
The court needed to determine the appropriate balance between the need for punishment and deterrence against the potential difficulties Mr Leung might face due to language barriers and cultural differences. It was essential to consider whether incarceration would impose an undue hardship on him, given these factors. The defence argued that the defendant's lack of English proficiency and cultural disconnect might make imprisonment particularly onerous, potentially affecting his ability to understand and participate in the legal process and to adjust to life in prison.
The court examined the severity of the offence, the defendant's criminal history, and the circumstances of his entry into Australia. It considered the principle of proportionality in sentencing, weighing the need for deterrence against the potential hardships of incarceration. The court ultimately determined that, despite the acknowledged difficulties, incarceration was necessary to adequately address the seriousness of the offence and to fulfil the need for general deterrence. The court ordered a sentence of imprisonment with specific considerations for the defendant's language and cultural needs to ensure his ability to understand and participate in the correctional process.
Orders
Orders of the court
See pars [84]-[91].
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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