R v Liu

Case [2024] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION:

R v Liu [2024] QCA 58

PARTIES:

R
v
LIU, Yu
(applicant)

FILE NO/S:

CA No 15 of 2023
SC No 1223 of 2021
SC No 1433 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 6 February 2023 (Crowley J)

DELIVERED ON:

19 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2023

JUDGES:

Dalton and Boddice JJA and Bradley J

ORDERS:

1.   The application for leave to appeal against sentence is allowed.

2.   The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was trafficking in dangerous drugs – where the applicant was charged with attempted murder, which was reduced to a charge of malicious act with intent (s 317 of the Criminal Code) – where the sentencing judge imposed cumulative sentences of six years imprisonment for each of the two offences – where Part 9A of the Penalties and Sentences Act 1992 (Qld) applied, meaning the applicant was eligible for parole after nine and one half years

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was young at the time of offending and had two minor prior convictions – where the applicant trafficked drugs into the prison system and while on bail – where the violent offending was premeditated and its consequences were severe – where the sentencing judge fixed eight years as an appropriate sentence for the trafficking and separately, for the malicious act with intent – where a two years reduction was made to each of the sentences to account for totality considerations – whether the applicant’s youth and prospects for rehabilitation outweighed the seriousness of the offending such that the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – ERROR IN FACT-FINDING – where the applicant made statements to a law enforcement participant (LEP) about the drug trafficking while at a watch house – where the applicant lied to the LEP about his conduct, seemingly to exaggerate his criminal credentials – where the applicant submitted that this lie undermined other things he said to the LEP so that the sentencing judge should not have sentenced the applicant based on things he said about the scale of the trafficking – whether there was a fact-finding error made by the sentencing judge

Drugs Misuse Act 1986 (Qld), s 6(2)(d)
Penalties and Sentences Act 1992 (Qld), part 9A, s 9(2)(c)

Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372, considered
Director of Public Prosecutions (Vic) v Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258, cited
Jarvis v The Queen (1993) 20 WAR 201, considered
Mill v The Queen (1988) 166 CLR 59; [1988]…

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AGLC
R v Liu [2024] QCA 58
Case
[2024] QCA 58
Decision Date

CaseChat Overview and Summary

The appellant in R v Liu appealed against his sentence, arguing it was manifestly excessive. The appellant, who was involved in trafficking dangerous drugs and committing a malicious act with intent, was sentenced to six years imprisonment for each offence, with the sentences running concurrently, making him eligible for parole after nine and a half years. The appellant contended that his youth and prospects for rehabilitation outweighed the seriousness of his offending, making the sentence excessive. The appellant also claimed that there was an error in fact-finding by the sentencing judge, who relied on statements the appellant made to a law enforcement participant while in custody, some of which the appellant now argued were false.

The court was required to decide whether the sentence imposed was manifestly excessive or inadequate and whether there was an error in fact-finding by the sentencing judge. The court considered the nature of the offences, the appellant's age, prior convictions, and prospects for rehabilitation. The court also examined the sentencing judge's reasoning and whether he appropriately considered the principle of totality in determining the sentence.

The court found that the eight-year starting point for the violent offending was within range and that the sentencing judge correctly considered the principle of totality. The court held that the sentences were cumulative, as the appellant's offending was of different natures and separated in time. The court noted that the two-year reduction in each sentence accounted for totality considerations, as the sentencing judge was concerned that the overall sentence should not be crushing given the appellant's youth and prospects for rehabilitation. The court held that the appellant's youth and prospects for rehabilitation did not outweigh the seriousness of the offending, and therefore, the sentence imposed was not manifestly excessive. The court also found no error in fact-finding by the sentencing judge, as the appellant's statements to the law enforcement participant were relevant and the sentencing judge was entitled to rely on them.

The application for leave to appeal against sentence was allowed, but the appeal was dismissed. The court's decision confirmed the appropriateness of the sentence imposed, taking into account the totality of the appellant's offending and the need to balance the seriousness of the offences with the appellant's youth and prospects for rehabilitation.

Orders

Orders of the court

1. The application for leave to appeal against sentence is allowed.

2. The appeal is dismissed.

Background

Background to the litigation

The appellant contends that, at the sentencing hearing, his defence counsel challenged the truth of some matters the appellant told a law enforcement participant (LEP). The appellant submits the sentencing judge wrongly accepted those matters as true.Agreed statements of facts An agreed statement of facts was tendered for the dangerous drug counts.[24] Another agreed statement was tendered for the malicious act count. The two statements described the circumstances in which the appellant made admissions to the LEP.[24]This statement also set out the factual basis for the summary charges. Early on 3 April 2020, the appellant was arrested and taken to Brisbane City Watchhouse. At 8.30 am, the LEP was placed in the appellant’s cell. This was before the appellant was able to speak with his solicitor. While in the cell, the LEP engaged the appellant in conversation, and the appellant spoke to the LEP about the trafficking. The dangerous drugs-related statement of facts included the following matters:“During admissions to an LEP the defendant stated he would procure half a kilogram of MDMA each fortnight which he would on-sell primarily in ounce quantities (28 grams). The defendant further stated that the lowest he would deal in was an 8-ball (3.5 grams) quantity and anything less than this was ‘not worth the effort … too much salesmanship’.During the admissions the defendant also admitted to supplying an ounce of MDMA to customers in the Cairns region.The defendant admitted to making $10,000 profit from each half kilogram of MDMA.… During admissions to an LEP the defendant admitted to selling high quality, imported cocaine. The defendant stated he would sell one gram of cocaine for $550 and placed a 20% profit margin on it.… In total, 29 known customers were able to be identified from the defendant’s Facebook account, phone messages, tick sheet, and admissions to the LEP.” The repeated use of the phrases “during admissions” and “during the admissions”, in the statement of facts, is unhelpful. A statement of facts should set out the relevant facts with appropriate clarity. These unsatisfactory aspects of the statement of facts were clarified in the Crown’s written and oral submissions. From the malicious act statement of facts, it appears that, shortly after he said these things to the LEP, the appellant was removed from the cell and allowed to contact his solicitor. After taking advice, he told police he declined to be interviewed. The appellant was then returned to the cell with the LEP, who again engaged him in conversation and attempted to extract further admissions. On 26 November 2021, the appellant applied to exclude admissions made to the LEP about the malicious act count. The application was dismissed on 10 February 2022. There was no application to exclude any admissions about the trafficking count.The defence counsel’s submission to the sentencing judge This proposed ground of appeal relies on the following passage from defence counsel’s oral submissions to the sentencing judge:“It’s true that his trafficking, as indicated by the Crown in their outline, was a fluctuating role as a wholesale supplier. It is unclear about the amount of profit but it’s certainly the case that there hasn’t been any asset forfeiture orders other than the cash found at the time of the police search warrant. And the BMW vehicle, which is accepted by the Crown upon my instructions as well, that that was worth $10,000. So it was a second-hand vehicle purchased by a 22 year old for $10,000 is not out of the ordinary.The police didn’t seek, of course, to do any financial analysis of any bank accounts. There’s no unexplained wealth applications. He was living at his mother’s house, and he was 22. There might be considered, perhaps, but some puffery at play and it’s, for example, talking to the LEP in the cells indicating that he was selling high-quality imported cocaine, which of course, at the time, he possessed only 4.82 grams of cocaine which was at a purity of 13.8 per cent.[[25]] So incredibly low. And there’s no particular – certainly not backing away from the statements against interest that he made to the LEP about half kilos fortnightly, etcetera, there’s no definitive timeframe that’s attributed to those either.It’s just relevant to some of the other cases that the Crown have sought to rely upon for the trafficking where … the applicants in the cases have been the target of significant operations. And certainly, a lot more is known of their involvement, those around them, and are able to be far more accurate about what they were dealing and selling at the time. Whilst there is, of course, the use of things like Snapchat which would tend to hide those sorts of matters, there isn’t the resultant outcome of him having living any kind of life of luxury at this relevant time.”[25]The dangerous drugs-related statement of facts refers to: “A clip seal bag containing 4.82 grams of white powder, in which forensic analysis detected 0.66 grams of cocaine (13.8% purity)…”.

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

The eight year starting point adopted by the primary judge for the violent offending was well within range.Approach to Sentencing: Totality Considerations After having fixed two appropriate sentences for the individual crimes of trafficking and malicious act, questions as to cumulation or concurrence arose. The sentencing judge expressly recognised that the sentence he imposed had to be one which was “a just and appropriate measure of the total criminality” involved in the appellant’s offending and that the sentence “also must be one which would ultimately not be a crushing sentence”. In discussing matters which bore on this tension, the sentencing judge specifically referred to the appellant’s age and the “positive steps” which he had taken towards rehabilitation in custody. The sentencing judge explained, correctly in my view, that it was not possible to impose sentences which paid proper regard to the objective seriousness of the offending unless the two individual sentences were cumulated. Further, he recognised that the violent offending was of a different nature from the drug offending, and separated from it in time. In those circumstances, he chose to impose cumulative sentences of six years each on the counts of trafficking and malicious act with intent. In the context of the sentencing remarks, it is obvious that the two years reduction made to each of the individual eight year sentences was to account for totality considerations in circumstances where the sentencing judge was concerned that, because of the appellant’s youth and prospects for rehabilitation, the overall sentence he imposed ought not be crushing. The trafficking and the personal violence were both serious examples of their type; each warranted a condign sentence, and they were separate types of offending which took place on separate occasions. In my view this was not an appropriate case to apply the principle in R v Nagy,[13] because to inflate the sentence on either count to reflect the totality of the offending would necessarily result in such a significant inflation that the sentence, and the appellant’s criminal record, would be distorted.[13][2004] 1 Qd R 63. Had two wholly concurrent sentences of eight years been imposed, the resulting sentence would have been insufficient to recognise the criminality of the two separate types of offending. It is not possible under the State sentencing regime to impose partially cumulative sentences. Thus, the only appropriate approach for the sentencing judge here was to do as he did and impose cumulative sentences. In any case where cumulative sentences are imposed, it will be part of the task of the sentencing court to consider whether or not unmodified accumulation of the sentences produces “an appropriate relativity between the totality of the criminality and the totality of the sentences.”[14] More often than not, the sum of cumulative sentences will be reduced downwards “to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding‑up of the terms appropriate for the offences if each were viewed alone.”[15] This reduction under the totality principle is part of the instinctive synthesis. It is necessarily a flexible process. It defies “precision either of description or implementation”.[16] Accordingly, whether the total effective sentence offends the principle of totality is often “a matter of impression”.[17][14]Street CJ in R v Holder and Johnston [1983] 3 NSWLR 245, 260, cited in Azzopardi (above), [59].[15]Azzopardi (above), [59].[16]Postiglione v The Queen (1997) 189 CLR 295, 340, cited in Azzopardi (above), [57].[17]Azzopardi (above), [58].