R v Leung - [2024] NSWDC 671

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 Agboti [2014] QCA 280.
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.
Wong v R [2018] NSWCCA 263.

Texts Cited:
Nil.

Category: Sentence
Parties: Crown – R (Cth)
Offender – Ka Ho Leung
Representation:
Counsel:
Crown – Mr Gordan, D.K.
Offender – Mr Terracini, A.
Solicitors:
Crown – Office of the Director of Public Prosecutions (Cth).
Offender – Andrews Solicitors.

File Number(s): 2023/00190517
Publication restriction: Nil.

Judgment

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.
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.
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.
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

There is a set of agreed facts. The drugs with which the offender was dealing were, as I said, N,N-Dimethylamphetamine (DMA).…

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 Leung

Details

AGLC: R v Leung [2024] NSWDC 671
Case: [2024] NSWDC 671
Decision Date: 12 December 2024

CaseChat Overview and Summary

The case of R v Leung was heard by the Supreme Court of Victoria. The defendant, Mr Leung, was convicted of attempting to import a commercial quantity of a border controlled drug, specifically N,N-Dimethylamphetamine. The central issue before the court was the appropriate sentencing for this offence, particularly considering the defendant's status as a tourist visa holder and the potential impact of language and cultural differences on the severity of incarceration.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Agboti [2014] QCA 280. 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. Wong v R [2018] NSWCCA 263.
Texts Cited:	Nil.
Category:	Sentence
Parties:	Crown – R (Cth) Offender – Ka Ho Leung
Representation:	Counsel: Crown – Mr Gordan, D.K. Offender – Mr Terracini, A. Solicitors: Crown – Office of the Director of Public Prosecutions (Cth). Offender – Andrews Solicitors.
File Number(s):	2023/00190517
Publication restriction:	Nil.