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

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

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

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.

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

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

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.
The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence:…

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 Luo

Details

AGLC: R v Luo [2024] NSWDC 238
Case: [2024] NSWDC 238
Decision Date: 24 June 2024

CaseChat Overview and Summary

The case before the court involved Yajian Luo, who was charged with federal and state drug offences. The federal charges related to the supply of a commercial quantity of a prohibited drug, while the state charges related to drug trafficking. The matter was heard in the Federal Circuit Court of Australia. The central legal issues the court had to address were whether Luo was guilty of the federal drug offences and whether he was guilty of the state drug trafficking charges.

The court examined the evidence presented by the prosecution, which included intercepted communications, drug seizure records, and witness testimonies. It found that the prosecution had established beyond reasonable doubt that Luo was involved in the supply of a commercial quantity of a prohibited drug, leading to his conviction on the federal charges. The court also determined that Luo was guilty of the state drug trafficking charges based on the evidence presented. The court carefully considered the legal principles applicable to drug offences, including the definition of a commercial quantity and the requirements for establishing a drug trafficking offence under state law.

In reaching its decision, the court highlighted the seriousness of drug offences and the need for stringent penalties to deter such activities. The court acknowledged the evidence against Luo and concluded that it was sufficient to convict him on both the federal and state charges. The court imposed a sentence of 18 months imprisonment for the state offence, to be served by way of an Intensive Corrections Order. For the federal offence, the court ordered Luo to be released upon entering into a recognisance in the sum of $1,000, pending further proceedings. The court's decision underscores the gravity of drug-related crimes and the importance of enforcing the law to protect the community.

Orders

Orders of the court

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].

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 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