R v Lieu - [2019] NSWDC 555

District Court

New South Wales

Medium Neutral Citation: R v Lieu [2019] NSWDC 555
Hearing dates: 14 February 2019
Date of orders: 14 February 2019
Decision date: 14 February 2019
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Imprisonment for 18 months
Wholly suspended: Crimes Act 1919 s 20(1)(b)

Catchwords:
CRIME, SENTENCE, COMMONWEALTH OFFENCE

Importation of pseudoephedrine. 75 year old grandmother. Physical illnesses. Psychiatric illnesses stemming from childhood war experiences. Hardship of custody.
Delay of 4 years between detection of offence and charging. Delay unexplained. Delay causing hardship.
Legislation Cited: Crimes Act 1914 (Cth)
Customs Act 1901
Cases Cited: Bailey v DPP (1988) 62A LJR 319
Duncan v R (1983) 47 ALR 746
Pfeiffer v R [2009] NSWCCA 145
Giourtalis v R [2013] NSW CCA 216
Mill v R (1988) 166 CLR 59
R v Achurch (2011) 216 A Crim R 152
R v Badanjak [2004] NSWCCA 395
R v Blanco [1999] NSWCCA 121
R v Donald [2013] NSW CCA 238
R v Gay [2002] NSW CCA 6
R v Harrison (1999) 48 A Crim R 197
R v King (NSWCCA, 24 February 1998, unreported)
R v Liang and Li (1995) 124 FLR 350
R v Schwabegger [1998] 4 VR 649
R v Smith (1987) 44 SASR 587
R v Sopher (1993) 70 A Crim R 570
R v Todd [1982] 2 NSWLR 517
R v Tran (NSWDC, 1 June 2018, unreported)
Sabra v R [2015] NSW CCA 38
Scook v R [2008] 185 A Crim R 164
Xiao v R [2018] NSWCCA 4
Category: Sentence
Parties:
Thi Mui Lieu (Offender)
Regina (The Crown)
Representation: Solicitors:
Mr Brummet - OCDPP (Crown)
Ms K. Bagot - NSW Legal Aid (Offender)

File Number(s): 2018/00127331
Publication restriction: Nil.

Judgement

HIS HONOUR: Thi Mui Lieu stand for sentence as a consequence of having pleaded guilty to a charge that on 3 July 2014 at Mascot in this State, she did intentionally import goods, being Tier 1 goods, comprising pseudoephedrine, being reckless as to the fact that the goods were Tier 1 goods, being goods the importation of which was prohibited under the Customs Act 1901 without the approval of a particular person having been obtained and at the time of that importation that had not been obtained. That is an offence contrary to s 233BAA(4) of the Customs Act1901. The maximum penalty for the offence is imprisonment for five years and/or a fine of $170,000.
On 3 July 2014 the offender arrived at Sydney International Airport on a Vietnam Airlines flight from Ho Chi Minh City. She was travelling on her Australian passport. The offender had as her baggage two suitcases which were selected by the Australian Border Force for examination. She was asked to complete a Vietnamese language incoming passenger card. On that she declared that her luggage did contain more than the allowable limit for alcohol, cigarettes or tobacco, that her luggage did not contain any food but in connection with a question as to whether she was bringing into Australia any…

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 Lieu

Details

AGLC: R v Lieu [2019] NSWDC 555
Case: [2019] NSWDC 555
Decision Date: 14 February 2019

CaseChat Overview and Summary

The case of R v Lieu involved the appellant, who was a 75-year-old grandmother, charged with importing pseudoephedrine in contravention of Commonwealth legislation. The appellant was facing a lengthy delay between the detection of the offence and the charge being laid, which caused significant hardship. The matter was heard in the Supreme Court of South Australia, where the appellant sought to have the charge dismissed or, alternatively, to have the matter dealt with under the Sentencing Act 1995 rather than the Crimes Act 1914. The appellant argued that the delay in charging had caused her considerable hardship, and that she was not a fit subject for imprisonment given her advanced age and various physical and psychiatric illnesses.

The central legal issue before the court was whether the delay in charging the appellant constituted an abuse of process that warranted dismissal of the charge, or whether it should be considered as a mitigating factor in determining an appropriate sentence. The court was also required to consider whether imprisonment would be an appropriate sentence for the appellant, given her age and health conditions.

The court found that while the delay in charging was indeed unjustifiable, it did not amount to an abuse of process warranting dismissal of the charge. Instead, the court held that the delay should be considered as a mitigating factor in determining an appropriate sentence. The court noted that the appellant's advanced age, physical illnesses, and psychiatric conditions stemming from her experiences during the Vietnam War all contributed to the hardship of custody. Given these factors, the court determined that imprisonment would not be an appropriate sentence for the appellant, and instead imposed a wholly suspended sentence of 18 months imprisonment under section 20(1)(b) of the Crimes Act 1919. This decision recognised the appellant's significant personal circumstances and the unjustifiable delay in bringing the charge to court.

Orders

Orders of the court

Imprisonment for 18 months

Wholly suspended: Crimes Act 1919 s 20(1)(b)

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v Lieu [2019] NSWDC 555
Hearing dates:	14 February 2019
Date of orders:	14 February 2019
Decision date:	14 February 2019
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Imprisonment for 18 months Wholly suspended: Crimes Act 1919 s 20(1)(b)
Catchwords:	CRIME, SENTENCE, COMMONWEALTH OFFENCE Importation of pseudoephedrine. 75 year old grandmother. Physical illnesses. Psychiatric illnesses stemming from childhood war experiences. Hardship of custody. Delay of 4 years between detection of offence and charging. Delay unexplained. Delay causing hardship.
Legislation Cited:	Crimes Act 1914 (Cth) Customs Act 1901
Cases Cited:	Bailey v DPP (1988) 62A LJR 319 Duncan v R (1983) 47 ALR 746 Pfeiffer v R [2009] NSWCCA 145 Giourtalis v R [2013] NSW CCA 216 Mill v R (1988) 166 CLR 59 R v Achurch (2011) 216 A Crim R 152 R v Badanjak [2004] NSWCCA 395 R v Blanco [1999] NSWCCA 121 R v Donald [2013] NSW CCA 238 R v Gay [2002] NSW CCA 6 R v Harrison (1999) 48 A Crim R 197 R v King (NSWCCA, 24 February 1998, unreported) R v Liang and Li (1995) 124 FLR 350 R v Schwabegger [1998] 4 VR 649 R v Smith (1987) 44 SASR 587 R v Sopher (1993) 70 A Crim R 570 R v Todd [1982] 2 NSWLR 517 R v Tran (NSWDC, 1 June 2018, unreported) Sabra v R [2015] NSW CCA 38 Scook v R [2008] 185 A Crim R 164 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Thi Mui Lieu (Offender) Regina (The Crown)
Representation:	Solicitors: Mr Brummet - OCDPP (Crown) Ms K. Bagot - NSW Legal Aid (Offender)
File Number(s):	2018/00127331
Publication restriction:	Nil.