R v Liu

Case [2005] NSWCCA 378 25 October 2005

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CITATION:
Regina v Liu [2005] NSWCCA 378

HEARING DATE(S): 25 October 2005

JUDGMENT DATE:

25 October 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Adams J at 45; Hoeben J at 68

DECISION:
Appeal dismissed (by majority)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - importing a prohibited import being not less than the commercial quantity of heroin - whether the sentence is manifestly excessive - objective seriousness of offence - plea of guilty - delay - hardship of being separated from son - hardship caused to son by separation - whether justifiable sense of grievance when considering the sentence imposed on the co-accused

LEGISLATION CITED:

Customs Act 1901
Crimes Act 1914

CASES CITED:
R v Boyle (1987) 34 A Crim R 202
R v Edwards (1996) 90 A Crim R 510
R v Postiglione (1996-97) 189 CLR 295
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Wirth (1976) 14 SASR 291
Wong v The Queen (2001) 207 CLR 584

PARTIES:
The Crown
Piu Man Liu

FILE NUMBER(S):
CCA 2005/1175

COUNSEL:
W J Abraham QC (Crown)
R Burgess (Appl)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Crown)
Legal Aid Commission of NSW (Appl)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/0975

LOWER COURT JUDICIAL OFFICER:
Hock DCJ

2005/1175

McCLELLAN CJ at CL
ADAMS J
HOEBEN J
TUESDAY 25 OCTOBER 2005

REGINA v Piu Man LIU

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to importing a prohibited import being not less than the commercial quantity of heroin contrary to s 233B(1)(b) of the Customs Act 1901. She was sentenced to eight years imprisonment with a non-parole period of four years. The sentence dates from 8 August 2002.

2 On the same day on which the applicant was sentenced her co-offender Sin Chin Wong pleaded guilty to a charge of importing not less than the trafficable quantity of heroin, he was sentenced to eight years imprisonment with a non-parole period of five and a half years.

3 The history of the matter from the date upon which the applicant was taken into custody is unusual. She originally pleaded guilty on 16 December 2002 and the matter was adjourned for sentence. Mr Wong stood trial on 17 December 2002 but that jury was discharged. On 31 January 2003 the applicant reversed her plea and stood trial jointly with Mr Wong on seven separate occasions. The trials aborted on six occasions for different reasons. Both the applicant and Mr Wong relied on a defence of duress. In the only trial which was completed the jury were unable to agree.

4 The applicant was pregnant to Mr Wong when she was arrested in Sydney and on 10 March 2003 she gave birth in custody to her only child, Dylan. The child was initially taken from her but the applicant was subsequently admitted to the Mothers and Children’s Residential Program at Jacaranda Cottages where her child has been able to live with her. The situation is obviously…

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 Liu

Details

AGLC: R v Liu [2005] NSWCCA 378
Case: [2005] NSWCCA 378
Decision Date: 25 October 2005

CaseChat Overview and Summary

The appellant, Liu, was convicted of importing a commercial quantity of heroin into Australia and sentenced to a term of imprisonment. Liu appealed against the sentence, arguing that it was manifestly excessive. The court was required to determine whether the sentence imposed was excessive, taking into account the objective seriousness of the offence, Liu's plea of guilty, the delay in the proceedings, and the hardship caused to Liu and his son due to separation. The court also had to consider the sentence imposed on Liu's co-accused to ensure that Liu's sentence was proportionate.

The court considered the objective seriousness of the offence, which involved a large quantity of heroin. The court also noted Liu's plea of guilty, which resulted in a discount to the sentence. However, the court found that the delay in the proceedings and the hardship caused to Liu and his son did not justify a reduction in sentence. The court also found that Liu's sense of grievance in relation to the sentence imposed on his co-accused was not justifiable. The court held that the sentence imposed was not manifestly excessive and dismissed the appeal.

The court held that the sentence imposed on Liu was proportionate to the objective seriousness of the offence, taking into account all relevant factors. The court found that the delay in the proceedings and the hardship caused to Liu and his son did not warrant a reduction in sentence. The court also found that Liu's sense of grievance in relation to the sentence imposed on his co-accused was not justifiable. The court dismissed the appeal and upheld the original sentence.

No orders were made.

Orders