R v Lui ENA - [2012] NSWDC 150

District Court

New South Wales

Medium Neutral Citation: R v Lui ENA [2012] NSWDC 150
Hearing dates: 02/02/12
Decision date: 09 February 2012
Before: S Norrish QC DCJ
Decision:
Convicted: Sentenced to a term of imprisonment of 3 years and 6 months commencing 02/02/12 and to expire 01/08/15 with a non parole period of 1 year and 8 months to commence 02/02/2012 and to expire 01/10/2013.

Catchwords: CRIMINAL LAW: Sentence - manufacture prohibited drug pseudoephedrine, expose a child to manufacture process and serious physical injury, special circumstances.
Legislation Cited: Drug (Misuse and Trafficking) Act 1985
Criminal Case Conferencing Trial Act 2008
Crimes (Sentencing Procedure) Act
Cases Cited: R v Thomson and Houlton [2000] NSWCCA 309
Alameddine v R [2006] NSWCCA 217
R v Allpass (1993) 72 A Crim R 561
R v Dietz (2003) 139 A Crim R 398
R v Noble (1996) Qld
R v Barci (1994) 76 A Crim R 103.
Markarian v The Queen (2005) 79 ALJR 1048
Veen (No 2) v The Queen (1988) 164 CLR 465
Category: Sentence
Parties: Director of Public Prosecutions
Lui Ena (Offender)
Representation: Mr M Johnston (Offender)
Director of Public Prosecutions (Crown)
Watsons (Offender)

File Number(s): 2010/90760

sentence

HIS HONOUR: Lui Ena today appears for sentence in relation to an offence committed by him on 14 March 2010 at Leichhardt. The offence to which he pleaded guilty at the Local Court and again at this court last Thursday was one alleging that he on 14 March 2010 at Leichhardt did manufacture a prohibited drug to wit pseudoephedrine and expose a child to that manufacturing process or to substances being stored for use in that process. This is an offence contrary to s 24A Drug (Misuse and Trafficking) Act 1985.

It carries a maximum penalty of eighteen years to be distinguished from an offence of manufacture prohibited drug simpliciter which carries a maximum penalty of fifteen years imprisonment. There is additional and/or alternative penalty of 2,400 penalty units available under the Act. I propose to impose a term of imprisonment as was understood in the proceedings last week. I have not been asked to impose a fine. There is no standard nonparole period for this offence.

The offender was born on 1 July 1971 and thus at the time of the commission of the offence on my calculation was thirtynine years of age. Some of the material tendered on behalf of the offender provides some background to the circumstances to the commission of the offence and I have taken that into account. In the context of dealing with the factual matters that arise in this case I propose to summarise the facts on sentence that were tendered by agreement by reference also to some of the material that touches upon the offender's subjective circumstances.

The offender was a man who developed drug and alcohol dependency problems in the years leading up to the commission of the offence. I accept that at the time of the commission of the offence the offender was…

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 Lui ENA

Details

AGLC: R v Lui Ena [2012] NSWDC 150
Case: [2012] NSWDC 150
Decision Date: 09 February 2012

CaseChat Overview and Summary

In the case of R v Lui, the accused was convicted for manufacturing a prohibited drug, specifically pseudoephedrine, in the presence of a child. The incident resulted in serious physical injury to the child. The case was heard and determined in the relevant Australian court. The primary focus of the court's deliberation was to assess the appropriate sentence for the accused, taking into account the severity of the crime and the presence of special circumstances.

The legal issues that the court was required to decide included the appropriate sentencing framework for the offence of manufacturing a prohibited drug, the impact of the presence of a child during the commission of the crime, and the degree of physical injury sustained by the child. The court also needed to consider any special circumstances that could influence the final sentence, such as the accused's role in the manufacturing process and the potential for rehabilitation.

The court meticulously evaluated the evidence presented, including the nature of the drug manufactured, the circumstances under which the child was exposed to the manufacturing process, and the extent of the physical injury. The court concluded that the accused's actions warranted a significant custodial sentence. The court found that the presence of a child and the resulting physical injury constituted aggravating factors. However, the court also acknowledged that the accused had expressed remorse and had limited prior criminal history. After weighing these factors, the court determined a sentence of 3 years and 6 months imprisonment, with a non-parole period of 1 year and 8 months.

The final orders of the court included the conviction of the accused and the imposition of a term of imprisonment of 3 years and 6 months, commencing on 02/02/12 and expiring on 01/08/15, with a non-parole period of 1 year and 8 months to commence on 02/02/2012 and to expire on 01/10/2013. This sentence reflects the gravity of the offence and the need to protect the public, while also considering the potential for the accused's rehabilitation.

Orders

Orders of the court

Convicted: Sentenced to a term of imprisonment of 3 years and 6 months commencing 02/02/12 and to expire 01/08/15 with a non parole period of 1 year and 8 months to commence 02/02/2012 and to expire 01/10/2013.

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 Lui ENA [2012] NSWDC 150
Hearing dates:	02/02/12
Decision date:	09 February 2012
Before:	S Norrish QC DCJ
Decision:	Convicted: Sentenced to a term of imprisonment of 3 years and 6 months commencing 02/02/12 and to expire 01/08/15 with a non parole period of 1 year and 8 months to commence 02/02/2012 and to expire 01/10/2013.
Catchwords:	CRIMINAL LAW: Sentence - manufacture prohibited drug pseudoephedrine, expose a child to manufacture process and serious physical injury, special circumstances.
Legislation Cited:	Drug (Misuse and Trafficking) Act 1985 Criminal Case Conferencing Trial Act 2008 Crimes (Sentencing Procedure) Act
Cases Cited:	R v Thomson and Houlton [2000] NSWCCA 309 Alameddine v R [2006] NSWCCA 217 R v Allpass (1993) 72 A Crim R 561 R v Dietz (2003) 139 A Crim R 398 R v Noble (1996) Qld R v Barci (1994) 76 A Crim R 103. Markarian v The Queen (2005) 79 ALJR 1048 Veen (No 2) v The Queen (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions Lui Ena (Offender)
Representation:	Mr M Johnston (Offender) Director of Public Prosecutions (Crown) Watsons (Offender)
File Number(s):	2010/90760