R v Liu - [2019] NSWDC 932

District Court

New South Wales

Medium Neutral Citation: R v Liu [2019] NSWDC 932
Hearing dates: 19 February 2019 - 22 March 2019
Decision date: 20 June 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Convicted. Sentenced to a term of imprisonment of three years and three months; non-parole period of two years and two months.

Catchwords:
CRIME - Sentence – possess tobacco products knowing that the goods were imported with intent to defraud the revenue – co-accused – middle man – under direction of importer – Chinese National – illegal resident – operated from premises of legitimate business – admits involvement with previous distribution of cigarettes from China – aware of character of importation but not necessarily scale and scope of defrauded revenue – unknown financial reward to offender – prior good character – minor criminal history.

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code s 11.2A
Customs Act 1901 (Cth) s 233BABAD(2)

Cases Cited:
Hili and Jones v R (2010) 242CLR 520
Zhang [2017] SASCFC 5

Category: Sentence
Parties: Regina (Crown Cth)
Qingtau Liu (offender)
Representation: Counsel:
Ms Gibson (Crown)
Mr E Wasilenia (offender)

File Number(s): 2017/00138000
Publication restriction: No

Judgment

Qingtao Liu appears today for sentence in relation to an offence to which he pleaded ‘not guilty’, but was found guilty by a jury after a trial of some weeks that commenced on 25 February 2019. He was convicted of an offence alleging that he on 8 May 2017 at Lidcombe in New South Wales committed an offence with Jingyu Li and others namely possess tobacco products knowing that the goods were imported with the intent to defraud the revenue.
There is no need for me to detail all the evidence at the trial. The prisoner gave evidence in his defence. There were a number of matters that were not in dispute, but consistent with the jury’s verdict there were obviously aspects of the prisoner’s evidence that were not accepted or did not raise reasonable possibilities inconsistent with guilt in respect of issues at large for the jury to decide.
The crime for which he is to be sentenced is an offence contrary to s 233BABAD(2) Customs Act 1901 (Cth) in conjunction with s 11.2A Criminal Code. The offence carries the maximum penalty of ten years imprisonment and/or $25,200 fine. There are no matters to be taken into account on a schedule or a form, nor any other offences that concern the Court.
The prisoner was arrested on 8 May 2017 in circumstances I will outline very shortly and has been in custody since that date. As I have foreshadowed to the prisoner in telling him what the sentence will be, the sentence I impose will commence on the date he came into custody. I am informed there is only one co-accused with whom I am directly concerned, that is a person by the name Jingyu Li to whom I earlier referred as the person in joint possession of tobacco products with the accused.
Mr Li…

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 [2019] NSWDC 932
Case: [2019] NSWDC 932
Decision Date: 20 June 2019

CaseChat Overview and Summary

The case of R v Liu involved the respondent, a Chinese national residing in Australia without proper documentation, who was convicted of possessing tobacco products knowing that they had been imported with the intent to defraud the revenue. The respondent acted as a middleman, operating from the premises of a legitimate business, under the direction of the importer. Liu admitted to his involvement in the distribution of cigarettes from China and was aware of the character of the importation but not necessarily the scale and scope of the defrauded revenue. His financial reward from the crime was unknown, but he had a minor criminal history and was otherwise of good character. The case was heard in a court of law, which had to determine the appropriate sentence for Liu's crime.

The primary legal issue that the court had to decide was the appropriate sentence for Liu's crime. The court had to consider several factors, including Liu's role in the importation, his awareness of the nature of the crime, his prior criminal history, and his good character. The court also had to determine the appropriate length of the sentence and the non-parole period. The court had to balance the need for punishment and deterrence with the need for rehabilitation and the circumstances of the offender.

The court found that Liu's role in the importation was significant, and he was aware of the nature of the crime. Although he had a minor criminal history and was otherwise of good character, the court found that a substantial sentence was necessary to deter others from engaging in similar criminal activities. The court sentenced Liu to a term of imprisonment of three years and three months, with a non-parole period of two years and two months. The court found that this sentence was appropriate given the seriousness of the crime and the need for deterrence.

In summary, the court found Liu guilty of possessing tobacco products knowing that they had been imported with the intent to defraud the revenue. The court sentenced Liu to a term of imprisonment of three years and three months, with a non-parole period of two years and two months. The court considered several factors in determining the appropriate sentence, including Liu's role in the importation, his awareness of the nature of the crime, his prior criminal history, and his good character. The court found that a substantial sentence was necessary to deter others from engaging in similar criminal activities.

Orders

Orders of the court

Convicted. Sentenced to a term of imprisonment of three years and three months; non-parole period of two years and two months.

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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Medium Neutral Citation:	R v Liu [2019] NSWDC 932
Hearing dates:	19 February 2019 - 22 March 2019
Decision date:	20 June 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Convicted. Sentenced to a term of imprisonment of three years and three months; non-parole period of two years and two months.
Catchwords:	CRIME - Sentence – possess tobacco products knowing that the goods were imported with intent to defraud the revenue – co-accused – middle man – under direction of importer – Chinese National – illegal resident – operated from premises of legitimate business – admits involvement with previous distribution of cigarettes from China – aware of character of importation but not necessarily scale and scope of defrauded revenue – unknown financial reward to offender – prior good character – minor criminal history.
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code s 11.2A Customs Act 1901 (Cth) s 233BABAD(2)
Cases Cited:	Hili and Jones v R (2010) 242CLR 520 Zhang [2017] SASCFC 5
Category:	Sentence
Parties:	Regina (Crown Cth) Qingtau Liu (offender)
Representation:	Counsel: Ms Gibson (Crown) Mr E Wasilenia (offender)
File Number(s):	2017/00138000
Publication restriction:	No