R v Luo

[2024] NSWDC 238

District Court

New South Wales

Medium Neutral Citation:

R v Luo [2024] NSWDC 238

Hearing dates:

14 June 2024

Date of orders:

24 June 2024

Decision date:

24 June 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Federal offence

1   Yajian Luo is convicted.

2 Without passing sentence, I order that the offender be released upon entering into a recognisance pursuant to s 20(1)(a) Crimes Act 1914 in the sum of $1,000 on the conditions set out at [67].

State offence

3   Yajian Luo is convicted.

4   Taking into account the matter on the Form 1, I impose a term of imprisonment of 18 months to be served by way of an Intensive Corrections Order on the conditions set out at [79]-[80].

Catchwords:

CRIME — Drug offences — Commonwealth offences

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Customs Act 1901

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147

Johnson v The Queen (2004) 78 ALJR 616

Mandranis v R [2021] NSWCCA 97

R v El Karhani (1990) 21 NSWLR 370

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Yajian Luo (Offender)

Representation:

Counsel:
M Higgins (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Nikola Velcic & Associates (Offender)

File Number(s):

2022/334932

Publication restriction:

None

Judgment

Introduction

1. Yajian Luo (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

1. possess tobacco product reckless as to whether the product was imported with intent to defraud revenue contrary to s 233BABAD2(B) Customs Act 1901. The maximum penalty for the offence is 5 years imprisonment and/or a fine of 500 penalty units; and

2. supply a commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the offence is 20 years imprisonment and/or a fine of 3,500 penalty units. Parliament has prescribed a standard non parole period of 10 years.

2. The offender also asks the Court to take into account an offence of deal with the proceeds of crime on a Form 1 when passing sentence for the drug supply offence.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

State offence

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and have had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147.

Federal offence

7. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

8. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

9. The offender has entered a plea of guilty to the Federal offence in the Local Court. The offender’s plea of guilty has saved the need for witnesses to be called at trial and there is significant utilitarian value in the plea of guilty. The appropriate discount is 25%.

Facts

10. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

11. At about 10.45am on 8 November 2022 police executed a search warrant at the offender’s residence. Police located and seized 8,560 cigarettes in 280 packs and a quantity of white powder contained in a clip seal plastic bag and a clear plastic container. The white powder was located in a suitcase and stored on the balcony. The white powder was later analysed and found to be cocaine with a total weight of 314.2 grams. Of that, 88.8 grams of the cocaine had a purity of 79.3% and 225.4 grams of the cocaine had a purity of 81.1%.

12. Police also located and seized a total of $16,860 cash and a Celine handbag valued at $4,150.

13. Police seized the offender’s laptop and located shipping information for parcels seized at the offender’s premises. Six of the seven parcels located at the premises had consignee details listed in a word document on the computer.

14. Police did not locate any documents or other communications on the offender’s mobile phone or computer relating to the supply of drugs.

Sentencing Assessment Report

15. The Court received a Sentencing Assessment Report (SAR) dated 21 November 2023. The content of the SAR can be summarised as follows.

16. The offender resides alone in stable accommodation that is paid for by her parents. She is presently in Australia on a bridging visa. She works part time as a restaurant manager but her primary source of income is from her parents in China.

17. The offender has no prior criminal history. She told the author of the SAR that she was holding the tobacco and drugs for her ex-partner and his friend. She reported that her ex-partner was emotionally abusive and that she was scared for her safety if she did not comply. She admitted that she knew the packages contained drugs. She stated that she had no intention of supplying the tobacco or the drugs and did not think through the consequences of her actions, which were not financially motivated. She no longer maintains contact with her ex-partner.

18. The offender stated that the cash found was received from her parents to pay her rent and was not related to any illegal activity.

19. The offender stated that she was willing to participate in interventions. She reported that she had a treating psychologist but that could not be confirmed by Community Corrections.

20. The offender was assessed as a low risk of re-offending and suitable to undertake community service work which could be provided for up to 21 hours of work per month.

The Offender’s Case on Sentence

21. The offender tendered the following documents:

• report of Ms Van de Velde, psychologist, dated 15 November 2023;

• University of Sydney Degree in Master of Professional Accounting dated 3 June 2020;

• CV of the offender;

• handwritten letter of the offender dated 20 December 2023;

• handwritten letter from offender’s parents undated;

• character reference from Ms Tang dated 17 November 2023.

22. The offender also gave sworn evidence and was cross-examined. The offender impressed me as an intelligent, careful and considered witness. She provided contemporaneous text messages to corroborate her version of events and I have no hesitation in accepting her evidence as truthful.

23. The following is a precis of the evidence relied on by the offender.

24. The offender was born in North-East China, being the only child of her parents and is presently 27 years of age. She had a good childhood and remains close to her parents. She commenced school early as a consequence of her parents’ work commitments. She was consistently younger than her peers at school and this caused her to be introverted. Being an only child, caused her to feel pressure from her parents to be a good student and to find a good husband.

25. She excelled at school obtaining the highest marks at primary school and junior high school. The family moved from a small town to a larger city to give the offender the opportunity to attend a better ranked senior high school. She completed senior high school with the highest mark in the university entrance exam.

26. At age 17 she enrolled in a Bachelor of Mathematics and Logistical Engineering at the University of Science and Technology in Beijing and left home to live on campus in a dormitory. At age 18 she commenced a relationship with Yadi Zheng, who she met at university, that endured through university, except for a period of about two months. When they completed their respective degrees, the offender and her boyfriend decided to continue their studies at the University of Sydney and came to Australia on student visas.

27. The offender was happy with her boyfriend and wanted to marry him when they completed their studies. Her parents told her that he was a “good match” and that they liked him. Unfortunately, his parents disapproved of their relationship because they did not think that she would make a good wife as she was not submissive enough and they did not want a daughter-in-law with a higher education degree.

28. The offender came to Sydney with her boyfriend in March 2018 and they lived together in an apartment in Haymarket. The offender undertook and completed a Master’s degree in Professional Accounting and her boyfriend enrolled in a Master’s degree in Commerce. Initially the offender was a fulltime student and she was supported by her parents.

29. After coming to Australia the offender’s relationship with her boyfriend changed. He became angry in the course of arguments and he would sometimes hit the table and on another occasion, smashed his phone. He would threaten to leave her, get out a suitcase and start to pack his belongings into it. She was scared that she would be left alone in Australia. She begged him not to leave her and she would physically stop him from packing. He would remove her hands from the suitcase. After a while she stopped arguing with him and tried to do whatever she could to please him. She did not tell her parents about her arguments with him because they liked him and she did not want them to worry about her.

30. After completing her Master’s degree the offender returned to China in April 2021 and lived with her parents, before returning to Sydney in February 2022. She then took up employment in a skin care company and was considering undertaking a Doctor of Philosophy, but she could not decide on a topic that interested her.

31. When she was in China her computer was used to store the Word document relating to the parcels found in the apartment. She knew that the document was there but was not involved in collecting any of the parcels.

32. The offender’s boyfriend returned to China in about June 2022 because he did not have a visa. She remained in Australia while her visa was being processed, otherwise she would not be permitted to return. It was her intention to return to China after her visa was granted and make plans to get married.

33. After her boyfriend left, he asked her on WeChat to monitor his Signal account until he got a SIM card in China and could log into the account himself. He told her to screenshot the messages on Signal and send them to him via WeChat. He then provided her with a reply to the messages from third parties so that she could respond on his behalf on Signal.

34. On 1 November 2022, the offender’s boyfriend asked her on WeChat to collect a package from a friend of his and hold it for safekeeping for one week while the friend returned to China to visit his elderly parents. The offender then liaised with her boyfriend’s friend to find a convenient time to collect the package. She attended later that night and was given a plastic bag. They agreed that the friend would collect the package from her when he returned from China in one week. When she got home she spoke to her boyfriend on WeChat. He asked her to open the package and show it to him. She saw that it contained white powder and became concerned. Her boyfriend told her it was an ingredient to make a drug and not the finished product. She put the drugs in a suitcase and stored it on the balcony of her apartment, because she was sharing the apartment with a friend and did not want the friend to see it and in her words “it was not part of my life”. She kept the package because she did not want to argue with her boyfriend because that would make him angry and she felt like she always lost any argument.

35. The tobacco products were brought to her apartment by the same friend of her boyfriend about two to three months before the police came. Her boyfriend told her to keep the packages for him. He did not mention the packages again and she thought he had forgotten about them.

36. The police executed the search warrant at her premises on 8 November 2022.

37. The offender has told her parents about the charges and was very ashamed and embarrassed to do so. She regrets the concern she had caused them. She delayed telling them for a while because her father has heart issues and she did not want to adversely impact his health.

38. In cross-examination, the offender stated that she did not believe the white powder was cocaine based on what her boyfriend told her. She stated that she did not use the gloves that were in the plastic bag given to her to open the container that the drugs were in.

39. The offender considered that her relationship was ongoing until the police came to execute the search warrant. The breakdown of her relationship caused her to be depressed and anxious. She experienced rumination, anger and distress. The psychologist opined that the offender had experienced low self-esteem over many years as a result of her internal perception of under achievement in the context of her parent’s expectations.

40. Psychometric testing revealed moderate levels of stress and anxiety and extremely severe levels of depression as well as the presence of symptoms consistent with Post Traumatic Stress Disorder.

41. The offender reported to the psychologist that her life is better since the breakdown of her relationship, because she has become more independent and has established new friendships.

42. One of those new friends, Ms Tang, describes the offender as an ethical professional who works hard and is a compassionate supporter of her friends.

43. The psychologist recommended that the offender undertake fortnightly treatment with a psychologist for a minimum of 12 months to assist her to deal with her self-esteem and symptoms of depression, anxiety and stress.

44. In her letter to the Court the offender expressed remorse for her actions, describing herself as “ignorant” and “gullible”. Her letter demonstrates insight into the circumstances that led to her offending and an understanding of the harm that drugs can do in society. It conveys that she accepts responsibility for her actions and that she will not re-offend.

45. In her letter to the Court, the offender’s mother confirms that the offender understands the wrongfulness of her conduct, that she is committed to make amends for it and that she has the ongoing support of her parents.

Consideration

Objective Seriousness of the State offence

46. The amount of the drug was 314.2g, about 25% more than the commercial quantity for cocaine of 250g. The purity of the drug was relatively high.

47. The offender was involved as a person to store the drugs for a very short period of seven days. There was no evidence that the offender was going to supply the drugs to anyone, except to give them back to the original owner. There is no evidence that the offender was to receive any financial reward or other benefit. The offender knew what she was doing was wrong.

48. The offender became involved in the offence at the request of her boyfriend. The offender’s judgement was impaired as a result of the coercive control methods used against her by her boyfriend over an extended period of time that caused her to be submissive to his demands, in the context of her low self-esteem.

49. I have taken into account the maximum penalty for the offence.

50. In all of the circumstances, I am satisfied that the objective seriousness of the offence is very low.

Nature and circumstances of the Federal offence

51. The amount of the tobacco products involved was significant.

52. There is no evidence that the offender knew that the duty had not been paid on the tobacco products, but she accepts by her plea that she was reckless to that.

53. The offender became involved in the offence at the request of her boyfriend. The offender’s judgement was impaired as a result of the coercive control methods used against her by her boyfriend over an extended period of time that caused her to be submissive to his demands, in the context of her low self-esteem.

54. I have taken into account the maximum penalty for the offence.

Deterrence

55. General deterrence is of significance to the offences before the Court. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will be met with appropriate punishment.

56. There is a need for specific deterrence but it is significantly reduced for the reasons that follow. The offender has suffered significant mental anguish as a result of being charged with these offences. Her employment prospects and future have been placed in jeopardy. The offender has responded to the charges in a way that demonstrates that she is a person who is unlikely to re-offend.

Aggravating factors for the State offence

57. There are no relevant aggravating factors.

Mitigating factors for the State offence

58. For the reasons that follow, I am satisfied that the mitigating factors provided for by s 21A(3)(e)-(i) Crimes (Sentencing Procedure) Act 1999 are established.

Contrition and remorse

59. The offender has accepted responsibility for the offences and expressed remorse to the psychologist, her parents and to the Court. I accept that she is genuinely contrite.

Character, antecedents, age, physical and mental condition

60. The offender is presently 27 years of age.

61. She comes before the Court with no prior convictions and was a person of good character. She is well educated and has a successful work history.

62. She is in good physical health. She has suffered low self-esteem over many years as a result of cultural pressures to perform and to find a suitable partner. As a result of being charged with the offences she has suffered significant symptoms of depression, anxiety and stress.

Prospects of rehabilitation

63. The offender has excellent prospects of rehabilitation. The offender has good family support and a good education behind her to enable her to make a significant contribution to society. The way in which the offender has responded to the charges demonstrates that she has excellent prospects of rehabilitation. Further, she is no longer in the toxic relationship that led her into the offending conduct and I am satisfied that she is unlikely to re-offend.

Sentencing Statistics

64. I have had regard to the sentencing statistics provided to me by the offender for the State offence. Noting the limitations considering that information, I am satisfied that the statistics provide support for the sentence I intend to impose.

Penalty

Federal offence

65. I have had regard to s 17A Crimes Act 1914 (Cth) and I am not satisfied that a penalty of imprisonment for the Federal offence is justified.

66. Yajian Luo is convicted.

67. Without passing sentence, I order that the offender be released upon entering into a recognisance pursuant to s 20(1)(a) Crimes Act 1914 in the sum of $1,000 on condition that she is of good behaviour for a period of 18 months from today and comply with the following additional conditions:

1. she is to be subject to the supervision of Community Corrections;

2. she is to obey all reasonable directions of a Community Corrections officer; and

3. she is to undertake such treatment for her mental health that a Community Corrections officer reasonably directs.

68. The offender must report to the City Community Corrections Office on or before 4pm on 1 July 2024.

69. If the offender fails to comply with the conditions of the order, further action may be taken against her. This may require her to return to Court.

State offence

70. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied having considered all other available sentences that no sentence other than imprisonment is appropriate.

71. Yajian Luo is convicted.

72. Taking into account the matter on the Form 1, I impose a term of imprisonment of 18 months.

73. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the following reasons.

74. The offender presents no threat to community safety. She requires psychological treatment which will be best accessed in the community. She presents a very low risk of re-offending.

75. An order that the sentence be served by an ICO will make the offender accountable for her actions. An ICO is a sentence of imprisonment that will significantly impact on the offender’s freedom and will reflect the seriousness of the offending conduct and the harm done to the community.

76. Out of the two options of sending her to prison or imposing an ICO, I am satisfied that the protection of the community will be best achieved by the offender serving the sentence in the community by way of an ICO: Mandranis v R [2021] NSWCCA 97 at [51].

77. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (24 June 2024) and expire on 23 December 2025.

78. The offender must report to the City Community Corrections Office on or before 4pm on 1 July 2024.

79. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

80. The following additional condition applies:

1. The offender must perform 100 hours of community service work.

81. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full time custody.

82. The offender must attend the Criminal Registry to confirm her residential address so that a copy of the order can be posted to her.

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Decision last updated: 24 June 2024