R v Luo; R v Liu; R v Fan; R v Bayliss

[2021] NSWSC 1500

Supreme Court

New South Wales

Medium Neutral Citation:

R v Luo; R v Liu; R v Fan; R v Bayliss [2021] NSWSC 1500

Hearing dates:

18, 19 March 2021

Date of orders:

19 November 2021

Decision date:

19 November 2021

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Ying Cheng Luo is sentenced to an aggregate sentence of 30 years with an aggregate non-parole period of 20 years.

(2) Jaiyu Liu is sentenced to an aggregate sentence of 28 years with an aggregate non-parole period of 19 years.

(3) Ian Fan is sentenced to an aggregate sentence of 22 years with an aggregate non-parole period of 16 years and 6 months.

(4) Jacob Bayliss is convicted and sentenced to a fixed term of imprisonment for 18 months.

Catchwords:

CRIMINAL LAW – sentencing – murder – shoot with intent to murder – fact finding following long trial of 6 co-accused – implications of acquittals for related offence of attempted murder – implication of acquittal of co-offender – whether contract killing – where principals not charged or called to give evidence – where quality of evidence questionable – principal witness self-serving fabricator with access to police brief – other prosecution witnesses evasive and unfavourable – analysis of whole of evidence – drug debt established – contract to kill not established –chaotic and poorly executed escapade – three firearms used – high level of objective seriousness – upper mid-range – gangster lifestyle – guns and drugs – shooting at makeshift Buddhist Temple – innocent by-stander killed – drug dealer target escaped – Sifu – Buddhist master and collector of fine wine – more than meets the eye

CRIMINAL LAW – sentencing – application of principle – fact finding in context of jury verdicts – alternative bases of liability – aggravating and mitigating circumstances – refusal to adopt a check-list approach to sentencing – totality – cumulation of sentences – partial concurrence – aggregate sentencing – special circumstances – parity and proportionality

Legislation Cited:

Crimes Act 1900 (NSW), s 93GA

Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22A, 25D, 44, 47, 53A, 55(1)(b)

Drugs Misuse and Trafficking Act 1985 (NSW), s25(1)

Evidence Act 1995 (NSW) ss 32, 38, 128, 136

Firearms Act 1996 (NSW) s 51

Cases Cited:

Andary v R [2020] NSWCCA 75

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 266 FLR 464

Droudis v R [2020] NSWCCA 322; (2020) 103 NSWLR 806

Ghamraoui v R [2009] NSWCCA 111

Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353

Hamze v R [2006] NSWCCA 36

Jonson v R [2016] NSWCCA 286; (2016) 263 A Crim R 268

Khudadadi v R [2021] NSWCCA 259

KR v R [2012] NSWCCA 32

Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397

Mansour v R [2011] NSWCCA 28; (2011) 209 A Crim R 275

Milat v R; Klein v R [2014] NSWCCA 29

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v Al Batat & Ors (No 1) [2020] NSWSC 967

R v Al Batat & Ors (No 2) [2020] NSWSC 992

R v Al Batat & Ors (No 14) [2020] NSWSC 1165

R v Al Batat & Ors (No 25) [2020] NSWSC 1388

R v Al Batat & Ors (No 28) [2020] NSWSC 1452

R v Bayliss [2020] NSWDC 769

R v Feroz and Ors [2021] NSWSC 341

R v Feroz; R v Ho; R v Hoang; R v Nguyen; R v Trinh [2020] NSWSC 341

R v Henry and Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7

R v Price [2005] NSWCCA 285

R v Primmer [2020] NSWCCA 50

R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300

R v Spinks [2021] NSWSC 649

R v Sumpton (No. 4) [2015] NSWSC 684

RPS v R [2000] HCA 3; 199 CLR 620

Tabbah v R [2019] NSWCCA 324

The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383

Veen v the Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Category:

Sentence

Parties:

Regina
Ying Cheng Luo
Jaiyu Liu
Ian Fan
Jacob Blake Bayliss

Representation:

Counsel:
P Hogan (Crown)
R Webb (Luo)
T Quilter (Fan)
N Carroll (Liu)
A Norrie (Bayliss)

Solicitors:
Office of the Director of Public Prosecutions (Regina)
Voros Lawyers (Luo)
Zahr & Partners (Fan)
George Sten & Co (Liu)
Ross Hill Lawyers (Bayliss)

File Number(s):

2017/170943; 2018/380808; 2017/168476; 2017/168582; 2017/321618

Publication restriction:

Nil

Judgment

1. The four offenders stand for sentence today because of their involvement, in various ways, in a series of criminal enterprises involving drugs and guns that culminated in the murder of one man and the attempted murder of another. The men stood trial together from November to December last year, along with two others - Abdallah Hassan Al Batat and Nai An Li - each of whom was acquitted of the charges they faced.

The proceedings and the offences for which each offender is to be sentenced

The trial

2. At the conclusion of a three-month trial, Ying Cheng Luo, Jaiyu Liu and Ian Fan were found guilty of the murder of Qin Wu (count 4) and the attempted murder of Jun Jia (count 5). These offences were committed on 1 February 2017 in the Guildford home - and sometime Buddhist Temple - of Jian Feng Weng (known as “Sifu” or “Master”). The same jury acquitted both Mr Luo and Mr Al Batat of one count of shooting at Mr Jia with intent to murder him (count 1), an offence allegedly committed in the late afternoon of 23 January 2017 at Bexley Road in Earlwood. Mr Al Batat was also found not guilty of the murder and attempted murder on 1 February 2017 (counts 4 and 5).

3. Mr Bayliss was found guilty of one count of supplying a firearm (count 2) but not guilty of a second count of supplying a firearm (count 3). These offences were part of the same transaction on 1 February 2017 and involved the alleged supply of the firearms to Messrs Luo, Liu and Fan. During the same meeting, the latter three offenders supplied Mr Bayliss with a quantity of methylamphetamine.

4. A sixth accused man, Nai An Li, was found not guilty of being an accessory after the fact to the murder and attempted murder (count 6).

5. Both Mr Al Batat and Mr Li were discharged and released upon the return of the verdicts and played no part in the complicated sentencing proceedings that followed.

Other indictments, offences and guilty pleas

6. The original indictment contained 9 counts. This was not the 6 count indictment presented before the jury panel at the commencement of the trial and from which the count numbers referred to above derive. The original indictment included a count (then count 2) against Mr Luo alleging that he discharged a firearm at a house in Willoughby on 30 January 2017 (s 93GA of the Crimes Act 1900 (NSW)). That count was severed from the indictment. [1] After the trial, the prosecution presented an indictment containing that single count and Mr Luo entered a plea of guilty at the commencement of the sentencing hearing.

   1. R v Al Batat & Ors (No 2) [2020] NSWSC 992.

7. The original indictment contained a count against Messrs Luo, Liu and Fan alleging that they supplied drugs to Mr Bayliss on 1 February 2017 (then count 5). The three offenders pleaded guilty to that offence before the jury was empanelled and the count was removed from the indictment.

8. Mr Bayliss also pleaded guilty to one count of supplying a prohibited drug in the Local Court on 2 February 2017. That matter is also before me for sentence.

Offences, relevant statutory penalties, pre-sentence custody and pre-existing unrelated sentences [2]

Mr Luo

2. These details were provided in the Prosecution’s Sentence Summary tendered at the sentencing hearing.

9. Mr Luo is to be sentenced for murder, shoot with intent to murder, firing a gun at a dwelling house, and supplying drugs. He was charged with the murder on 7 June 2017 at which time he was in custody for unrelated offences. He was serving a sentence for recklessly inflict grievous bodily harm until 8 November 2018 which was imposed by the District Court. He is currently in custody serving another sentence for supplying a large commercial quantity of drugs. His existing non-parole period is due to expire on 7 May 2025.

Mr Liu

10. Mr Liu is to be sentenced for murder, shoot with intent to murder and supplying drugs. He was charged with murder on 5 June 2017 at which time he was in custody (from 8 February 2017 until 22 March 2018) for unrelated matters. He has been in custody, solely as a result of the present charges, since 22 March 2018.

Mr Fan

11. Mr Fan is to be sentenced for murder, shoot with intent to murder and supplying drugs. He has been in custody since 5 June 2017 when he was arrested and charged for the murder and attempted murder. This period of incarceration is solely referable to the offences for which he is to be sentenced.

Mr Bayliss

12. Mr Bayliss is to be sentenced for supplying a firearm and supplying drugs. He has been in custody for unrelated matters at all relevant times. He was in custody for firearms offences from 14 February 2017 until 13 August 2018. He was then sentenced in the District Court for a specially aggravated enter dwelling with intent to rob and reckless wounding and received a sentence including a non-parole period that will expire on 13 August 2023.

Maximum penalties and standard non-parole periods

13. The maximum penalties and standard non-parole periods applicable to the offences for which the offenders are to be sentenced are as follows:

1. Murder carries a maximum penalty of life imprisonment and there is a standard non-parole period of 20 years. These statutory maximums and guideposts apply to offences for which Messrs Luo, Liu and Fan are to be sentenced.

2. Shoot with intent to murder carries a maximum penalty of 25 years and a standard non-parole period of 10 years. These penalties also apply to Messrs Luo, Liu and Fan.

3. Supplying drugs carries a maximum penalty of 15 years. This maximum penalty applies to all four offenders. There is no standard non-parole period.

4. Supplying a firearm carries a maximum penalty of 5 years and there is no standard non-parole period. This penalty applies only to Mr Bayliss.

5. The maximum penalties indicate the relative seriousness of the offences. The maximum penalty is a critical matter to be borne in mind from the beginning to the end of the sentencing process. Murder is the most serious offence known to the law and this is reflected in the maximum penalty of life imprisonment.

14. The standard non-parole period for an offence applies to an offence in the mid-range of objective seriousness. Subject to an amendment to the relevant provision, the High Court explained in Muldrock v The Queen the correct approach to be taken to sentencing for an offence that has an applicable standard non-parole period. [3]

    3. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.

The impact of this organised criminal activity on its victims and the community

15. I am required to make findings concerning the facts upon which each of the four men is to be sentenced. This is a complicated task because of the competing versions contended for by the parties, the substantial questions over the credibility of the prosecution witnesses, and the quality of the evidence. However, there are two matters of fact which cannot be disputed. First, these four offenders were involved in serious, planned and organised criminal activity. The extent to which this aggravates the offending varies but it is a relevant matter in every instance. Second, the devastating impact of the offending on the victims, their relatives and on the community more generally. It is that to which I will first refer because, like the maximum penalties, it is a matter that a sentencing Judge must never lose sight of when undertaking the task of determining an appropriate punishment for an individual offender.

Impact on the community and deterrence

16. The negative impact of organised crime, including the distribution of guns and methylamphetamine, on the fabric of the community cannot be underestimated. The penalties for offences involving guns and drugs reflect the seriousness with which Parliament has determined the courts must treat offenders who are involved in this type of crime. When members of the community hear of shootings in suburban homes, it undermines their sense of security and safety.

17. Crimes, such as those with which the Court is here concerned, must be met with stern punishment. The law requires sentences in cases such as these to protect the community and prevent crime by sending a message that such wanton and lawless conduct will not be tolerated and that those who are caught and convicted can expect to lose their fundamental right to liberty for a lengthy period.

Impact on the victims

18. Apart from the attack on the fabric of society, the law requires sentencing to vindicate the dignity of the individual victims and for the punishment to recognise the harm done to the victims and their families.

19. Mr Qin was essentially an innocent bystander caught up in what I am satisfied was a shooting that had its genesis in a dispute about drugs and money. He was in the wrong place at the wrong time. Now, he is dead.

20. His father (Weifu Wu) provided a statement explaining the impact of his son’s death. I thank him for his statement that provides some insight into his family’s grief. He and the family have my deepest sympathy although no sentence I impose and no words I construct can provide any real comfort.

Weifu Wu said when his relatives learned of Qin Wu’s death from the Police, “everyone in the family was devastated and abandoned ourselves to inconsolable grief.” Qin Wu’s mother suffered from intermittent psychosis in the months that followed. She would go into Qin Wu’s room and “cry out his name over and over again”. Mr Wu recounts “losing [his] own head”, sleepless nights due to the “mental torture” and a “soreness and indignation” in his heart. He said Qin Wu was a hardworking and selfless man, who was the primary provider for his family and parents. His death has had a severe financial impact on the family. Weifu returned to China to help Qin Wu’s wife care for their three young children. She was a full-time house-wife but has been forced to find work to maintain the family income far-away from home.

21. There has been a significant impact on Qin Wu’s young children. They have lost their father forever and their mother now spends extended periods of time away from the children in order to provide for them. Weifu says that “the children live in a lonely family without parental guidance or love”.

22. Devastating impacts on family and loved ones is the almost inevitable result of any crime in which life is taken. This is why homicide is treated as the most serious of crimes.

An overview of the facts and evidence and an outline of the position taken by the parties on sentence

23. The facts upon which the offenders are to be sentenced must not be inconsistent with the verdicts of the jury. However, the verdicts are capable of explanation on several bases and I am required to find the facts based on the evidence I accept, provided those findings are able to be reconciled with the verdicts. Aggravating circumstances must be established beyond reasonable doubt while mitigating factors are to be established on the balance of probabilities. Sometimes the evidence does not allow a sentencing Judge to make relevant factual findings because the Court may have:

“only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence.”[4]

4. The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [16].

24. Sometimes that is so because the evidence is silent and only the accused person knows the complete background to the offending. In other cases - and this is one of them - the accused’s silence is accompanied by the fact that the evidentiary sources of the prosecution case are unreliable, or important witnesses were not called, and the evidence before the court is inconsistent and unsatisfactory.

25. The parties in the present case took diametrically opposed positions on a central issue in the murder case.

The prosecution case on sentence

26. The Prosecution submits that this was a contract killing that went wrong. It submits that Mr Luo accepted a contract from two serious drug dealers (James Chen and Jackie Chau) to kill Jun Jia because he owed them a large sum of money for drugs. The case at trial was that Mr Al Batat, at the behest of Mr Luo, attempted to shoot and kill Mr Jia on 23 January 2017 in Earlwood but this attempt failed. There was a further attempt on Mr Jia’s life at Sifu’s Temple on 1 February. The prosecution case was that Mr Al Batat was at the Temple and notified Mr Luo that Mr Jia was present. Messrs Luo, Liu and Fan, along with Mr Luo’s partner, Leonard Rivers,[5] travelled to Guildford in two cars. Initially, Mr Luo and Mr Liu entered the Temple and Mr Wu was shot and killed when Mr Liu discharged his weapon intending to kill Mr Jia. Mr Jia made his escape by the time Messrs Luo, Liu and Fan returned. All three were armed with guns. The prosecution case was one of joint criminal enterprise – that is that all three (along with Mr Al Batat) entered an agreement to kill Mr Jia. It put the case on an alternative basis asserting an extended joint criminal enterprise. This alternative case asserted that the men attended the Temple to intimidate the occupants and were armed with loaded guns. Mr Liu discharged the firearm with intent to kill or inflict grievous bodily harm. The other men were criminally liable because what eventuated was within their contemplation when they agreed to participate in the criminal enterprise to enter the Temple armed and with the intention of intimidating those inside.

    5. This is a pseudonym: see R v Al Batat & Ors (No 1) [2020] NSWSC 967 at [32].

27. There are two significant, although not insurmountable, obstacles in the way of the prosecution establishing (beyond reasonable doubt) its primary theory of a contract killing. The first concerns the implications of Mr Al Batat’s acquittal on all of the counts he faced. While there were some differences in the evidence admissible against the three men, those differences do not explain the clear rejection (in the sense that the jury were not satisfied to the criminal standard) of the prosecution case against Mr Al Batat. The second obstacle concerns the quality of the evidence of some of the witnesses called by the prosecution to prove its case. In particular, to establish a contract killing, heavy reliance was placed on the evidence of Leonard Rivers, a witness who was both criminally concerned in the events and who gained substantial rewards for his cooperation with the police and for giving evidence in the trial.

The offenders’ case(s) on sentence

28. The three offenders who were found guilty of murder and shoot with intent to murder, each of whom was separately represented, took slightly different approaches to the factual basis upon which they should be sentenced. As with Mr Al Batat, there were different bodies of evidence against the three murderers and some of these were of significance. However, the bulk of the evidence was common to each of the offenders and there were significant common threads throughout the submissions made on sentence.

29. Each offender submitted that the prosecution had failed to establish that this was a contract killing. Messrs Luo and Fan, at least implicitly, invited the Court to proceed on the basis of the prosecution’s alternative case, namely that their liability arose on the basis of extended joint criminal enterprise. Mr Liu, who discharged the weapon that killed Mr Wu, is to be sentenced as a principal although the nature and existence of any joint criminal enterprise is relevant to an assessment of the seriousness of the offence.

30. All three offenders disputed that Mr Liu acted with an intention to kill.

The issues to be determined in a nutshell

31. While the verdicts of the jury resolved the fundamental issues between the prosecution and the accused, the sentencing proceedings were occupied largely by several outstanding factual disputes between the parties. As the foregoing analysis demonstrates, the parties took robust and irreconcilable positions on several issues. The more significant factual issues for determination are:

1. Whether the prosecution established that the offenders should be sentenced on the basis that they carried out the murder and shoot with intent to murder as part of a contract to kill Jun Jia.

2. The nature and extent of the joint criminal enterprise which resulted in the shooting.

3. The specific intention with which each of the offenders, and particularly Mr Liu, acted.

4. The number of weapons used and who was armed at the time the offenders entered the Temple.

5. The circumstances that led to the killing including the relationships between the parties and the nature of the drug dealing in which Jun Jia, the offenders and others were involved.

Relationships, drug dealing, the key players and critical witnesses

32. To untangle the complex factual matrix which played out between January and early February, and in relation to which evidence was given in the course of the lengthy trial, it is as well to start with an understanding of the relationships between the key players and witnesses and to make some general findings as to the credibility of the key witnesses.

Jun Jia’s association with the offenders

33. Mr Jia gave unchallenged evidence of his associations with Messrs Luo, Liu and Fan.

34. He said he met Mr Fan at a brothel operated by Mr Fan’s wife (Lucy) in George Street, Burwood. He said he was initially a patron of the brothel but later became friends with Lucy and he and Mr Wu “helped” at the brothel by “redoing the bathrooms”. He said Lucy introduced him to smoking “Ice”. Mr Jia said he met Mr Fan (who he and others called “Michael”) one or two months after he first visited the brothel. He was aware of some trips Mr Fan had to China and later spent time with him because Mr Fan “did not have any other friends”. Mr Fan’s girlfriend (Maggie Hsu) gave evidence that Michael told her that Mr Jia was working at the brothel.

35. He said he met Mr Liu (who he called “Corey”) “between the end of 2012 and the beginning of 2013”. He allowed Mr Liu to live at his unoccupied apartment in Clarence Street when Mr Liu had nowhere else to live. It was put to Mr Jia in cross-examination that he “knew Jaiyu [Liu] for a number of years by 2017” and he agreed with that proposition. He said he recognised Mr Liu when the offenders arrived at the Temple with Mr Luo on 1 February 2017.

36. Mr Jia said he had been to the Temple on five or six occasions and is where he met a person referred to as “the gay guy”. This was a reference to Mr Luo. He said he met “the gay guy” once and that he recognised him when he entered the Temple on 1 February 2017. There was no challenge to Mr Jia as to his knowledge of Mr Luo although counsel referred to him as “the third man” or “male 3” or similar throughout the cross-examination. There was no dispute that Mr Luo was present at the time of the shooting.

James and Jackie

37. On the prosecution case, Jia Chen (“James”) and Kwok Chun Chau (“Jackie”) were central figures in the events that unfolded. They sold drugs to Jun Jia who failed to pay for them. This led to the pair offering a contract to kill Mr Jia which was accepted by Mr Luo. A number of witnesses called at the trial referred to the drug dealing and other activities undertaken by James and Jackie. Police witnesses confirmed the existence of the pair and knew where they lived. At one stage during the trial, James was present outside the court complex and interacted with Jun Jia during the course of his evidence. [6] Neither James nor Jackie has been charged with any offence arising out of the drug dealing or the alleged murder plot.

    6. Tcpt, 2 September 2020, p 140.

38. Neither James nor Jackie were called to give evidence at the trial. The jury was directed that this was a matter to be considered in determining whether the case against the offenders was established beyond reasonable doubt. [7] The same principle or logic applies in my determination of the facts on sentence. In particular, where the Prosecutor contends for a finding that would aggravate the criminality or increase an otherwise appropriate sentence, and where that matter must be established beyond reasonable doubt, I am entitled to (and should) take into account the fact that I have heard no evidence from witnesses who might have expected to have some knowledge of relevant events. I must not speculate on what they would have said if they had been called. As I understand, neither James nor Jackie has ever been charged and I am unaware of what investigations have taken place into their involvement.

    7. Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397 at [27]; RPS v R [2000] HCA 3; 199 CLR 620 at [27]-[29]; Summing up Transcript, 17 November 2020, p 100-101.

Drug use and drug supply

39. There was a considerable amount of evidence at the trial, and then in the sentencing hearing, about the use and supply of drugs by a number of the accused and witnesses. This included:

• The involvement of James and Jackie in the supply of drugs and their relationship with Jun Jia and others in this enterprise.

• The related drug dealing activities of Jun Jia, Wai Li, David Boikov and Ada Chan.

• The acquisition of methylamphetamine by Ada Chan and other sex workers for use in the course of their employment at a “brothel house” (to adopt the quaint language of counsel for Mr Luo).

• The importation and distribution of cocaine by Leonard Rivers.

• Mr Luo and Rivers obtaining “cheap, high quality” heroin from Mr Li and smoking heroin at Mr Li’s house. The evidence established that Mr Li was addicted to heroin at the relevant time.

• The supply of methylamphetamine by Mr Luo and evidence deriving from Rivers but not disputed in the cross-examination on behalf of Mr Luo.

• The supply of methylamphetamine to Mr Bayliss by Messrs Luo, Liu and Fan on 1 February 2017. The witness Martina Sellers (a pseudonym) gave evidence of the supply and use of drugs in Mr Liu’s apartment at around the time Mr Bayliss supplied the gun (or guns) to Messrs Luo, Liu and Fan.

• The use of methylamphetamine by Jun Jia at the brothel in Burwood operated by Mr Fan’s wife.

• Mr Liu’s use of methylamphetamine on the day of the murder (evidence that was given by Wai Li and relied on by Liu to militate against a finding of an intention to kill).

• The daily use of drugs by Maggie Hsu, Mr Fan’s girlfriend at the relevant time.

• The use of Ice at the Temple and Mr Jia’s concession that he took Ice with him to the Temple on 1 February 2017 and “gave it to Da Feng [Sifu]”.

40. The evidence demonstrated that many of the witnesses and the offenders themselves were drug users and some of the principal players were involved in substantial drug trafficking. This gives rise, in the case of the witnesses, to issues concerning their credibility in the sense of their reliability, accuracy and honesty. The evidence must be considered in that context and considerable caution must be adopted in making findings of fact, especially where those findings are adverse to the offenders.

41. Most of the important witnesses gave evidence with the protection of a certificate under s 128 of the Evidence Act 1995 (NSW) and provided their evidence in chief under cross-examination by the Prosecutor, once leave was given under ss 32 and/or 38. While the evidence lacked credibility in various ways, the totality of the evidence left no room for doubt that the offenders were involved in drug use and dealing. That finding is consistent with their plea of guilty to the offence of supplying drugs to Mr Bayliss on 1 February 2017, and also with Mr Bayliss’s plea of supplying drugs in the days thereafter. The drugs he possessed for supply were almost certainly the same drugs supplied to him by the three co-offenders.

42. The jury was directed that the general evidence of the drug use and dealing could only be used in a limited way, that is, to understand the background of the events that unfolded between 23 January 2017 and 1 February 2017. It was not to be used in a prejudicial way. I take the same approach in finding the facts on sentence. However, the substantial drug transaction, to which I will now turn, has a more direct impact on the issues before the jury and is now to be resolved for the purposes of sentence. The prosecution case was that this provided the motive behind the shootings on 23 January and 1 February 2017.

The drug deal between James, Jackie, Jun Jia and others

43. The prosecution adduced detailed, at times befuddling, evidence concerning the sale of drugs from James Chen to Jun Jia.

44. There was no dispute that Mr Jia was involved in drug dealing with James and Jackie in late 2016 to early 2017. However, the details and magnitude of that dealing was disputed, as was its alleged connection to the shooting(s). The evidence was elicited from the witnesses Jun Jia, Wai Li, Brian Mao, Ada Chan, Leonard Rivers and, by way of hearsay or admission, by Mr Luo. James and Jackie were not called to give evidence.

45. Mr Jia said he was contacted by James in the second half of 2016 about a shipment of 5kg of methylamphetamine (“Ice” or “crystal meth”) expected to arrive in Australia. [8] James asked Mr Jia if he would help him sell the drugs once it arrived. Towards the end of 2016, James called Mr Jia and arranged to meet at a footbridge in Turella. At that meeting, James said the drugs had arrived and gave Mr Jia a small cigarette lighter containing a sample of the drugs. [9]

    8. Tcpt, 2 September 2020, p 118, 121-122.

    9. Tcpt, 2 September 2020, p 136.

46. Brian Mao gave evidence that Jackie asked him to do a “favour” for $10,000, [10] and that on 6 January 2017, he collected a safe from a shipping company. A warehouse release authority was tendered as Exhibit S. Mao stored the safe in a shed at his home until James came to inspect it. The safe contained a false bottom which James peeled off to reveal a large “like vacuum bag, with what [Mao] assumed was crystal meth”. Mao said he later ascertained that the substance weighed about 4.9 kilograms. [11]

    10. Tcpt, 14 September 2020, p 499-500.

    11. Tcpt, 14 September 2020, p 503-504.

47. Mao then made a series of deliveries for James and Jackie. The details were a little vague but I accept that there were at least two deliveries involving Mr Jia. The first of those deliveries was made to a BP service station and involved half to one kilogram of the drug. The second delivery of one kilogram was made to the Garden Lodge Motel in Haberfield. Mr Mao was met by James in the parking lot of the motel and passed him the package containing the drugs. [12] James then delivered the drugs to Mr Jia. [13] A tax invoice (Exhibit A) showed that Mr Jia booked a room at the Garden Lodge Motel from the 8^th to the 11^th of January 2017.

    12. Tcpt, 14 September 2020, p 504-511.

    13. Tcpt, 2 September 2020, p 146.

48. At some stage during that period, Mr Jia met with Ada Chan, Wai Li and her partner, David Boikov, in his motel room and exchanged about 1kg of Ice for $96,000 cash. Ms Li provided $70,000 cash. The prosecution case was that Ms Chan lent Ms Li the shortfall and gave the balance of the cash to Mr Jia. Ms Li and Mr Jia gave evidence to that effect and said that the transaction was facilitated by Ada Chan. [14]

    14. Tcpt, 2 September 2020, p 146-149; Tcpt, 9 September 2020, p 390-396.

49. Ada Chan also gave evidence and provided an account that was quite inconsistent with that of Jun Jia and Wai Li. Ms Chan also gave evidence on a voir dire or pre-trial hearing. [15] When she was called to give evidence, the Prosecutor simply called her to make her available for cross-examination and then, by leave, put a number of propositions to her. Ms Chan denied being involved in the large drug transaction the other witnesses described. She said she only purchased about $3,000 worth of Ice for personal use in her employment as a sex worker and on behalf of other workers at the brothel where she worked. [16] At one stage in cross-examination, she said that she may have told Wai Li that Mr Jia had some Ice and that she had lent Ms Li $20,000. [17] She said this was because Wai Li had lost money gambling.

    15. The parties sought a number of advance rulings in relation to Ada Chan’s evidence on 13 October 2020. I granted leave to allow the prosecutor to cross-examine Ms Chan after the accused: R v Al Batat & Ors (No 28) [2020] NSWSC 1452.

    16. Tcpt, 14 October 2020, p 1672-1674.

    17. Tcpt, 14 October 2020, p 1673, 1683, 1686.

50. I am satisfied that Ms Chan was not attempting to provide an honest account and that she was minimising her role and the scale of the drug deal in which she was involved. I cannot accept the submission made by counsel for Mr Luo that Ms Chan’s evidence should be accepted over the evidence of Mr Jia and Ms Li. [18] Other aspects of Mr Jia’s evidence, particularly his account of events at the Temple, were not believable and I did not accept that he was generally a credible witness. However, his evidence of this transaction found support in the testimony of Wai Li and Brian Mao, each of whom I accept, were attempting to provide an honest account of what happened.

    18. Outline of submissions on behalf of Mr Luo (MFI S1), p 4; Sentence Tcpt, 18 March 2021, p 23.

The alleged drug debt

51. The evidence of what happened to the cash that Jun Jia obtained as a result of the drug deals at the Garden Lodge Motel is confusing and dependent to a significant degree on Mr Jia’s word. He said he placed the $90,000 cash in a “drawer” under the driver’s seat of his Porsche motor car and then drove to an address in Turella where he left the car in the garage. He said he took out $10,000 and went to the casino. He gave some of the money to Qin Wu’s brother. It was not clear from his evidence in chief what he did with the rest of the money.

52. Mr Jia gave various accounts in cross-examination. With some ingenuity, it may be possible to reconcile these accounts. He told Senior Counsel for Mr Al Batat that he did not pay for the Ice he received from James and Jackie at a BP service station in Hornsby and that he “cheated” “Ada or Bebe” out of money for the deals he did at the Garden Lodge Motel on Parramatta Road. [19] He claimed he had taken $50,000 from the Porsche on 23 January 2017 and this was the proceeds of drug dealing. He said he intended to take the money to the casino to gamble. [20] It is not clear what happened to this $50,000. In cross-examination by counsel for Mr Luo, it was put to Mr Jia that there was no drug debt relating “to money not accounted for for 1 kilogram of Ice”. [21] Mr Jia denied this proposition and did so again when it was put to him by counsel for Mr Liu. [22] However, he agreed that he had given money to James who was waiting downstairs at the Ashfield Hotel but said this was on the “first day”, not on the third day when he left the hotel with $90,000 in the Porsche. [23] He said:

“I had to deal the dealings with James. On the first day in the same place and on the third day in the exact same place. Same place. And from that place, lastly, I departed with the money.” [24]

19. Tcpt, 4 September 2020, p 228-229.

20. Tcpt, 4 September 2020, p 232.

21. Tcpt, 7 September 2020, p 290.

22. Tcpt, 9 September 2020, p 360.

23. Tcpt, 9 September 2020, p 359-360.

24. Tcpt, 9 September 2020, p 360.

53. He denied that the provision of money to James was “the truth just [slipping] out” or that he had “told so many lies you can’t remember what is the truth and what’s not?” [25]

    25. Tcpt, 9 September 2020, p 360.

54. Adding to the confusion about the fate of the money paid to Mr Jia by Ada Chan and/or Wai Li was the evidence of Wai Li who said she saw Jia and James meet downstairs at the hotel as she left with the Ice in order to “rush to sell it”. [26] In cross-examination, she said she saw Jun Jia pass a bag to James and she was not sure whether “it holds money or things”. [27] In re-examination (over objection, and by way of cross-examination with the grant of leave), she appeared to retreat from the evidence that Jia gave James a bag and said that she “only saw him entering the car” and that Jia was “carrying a bag”. [28] The Prosecutor put to Ms Li that she was “deliberately trying to assist Mr Luo by giving false evidence” and this accusation appeared to relate to the evidence that Jia got into James’ car. Counsel for Mr Luo was permitted to continue to cross-examine in light of the evidence elicited in re-examination. Ms Li confirmed seeing Jun Jia meet with James after the drug dealing in the motel room and that he had got into James’ car carrying a bag. She denied the proposition that she was trying to help Mr Luo. She said “I’m only telling what I know” and agreed that much of the evidence in her statement was not “particularly great for Mr Luo”. [29]

    26. Tcpt, 9 September 2020, p 394-395.

    27. Tcpt, 11 September 2020, p 466-467.

    28. Tcpt, 11 September 2020, p 479.

    29. Tcpt, 11 September 2020, p 482, 487.

55. While Ms Li was a drug dealer who gave evidence while serving a term of imprisonment and with the protection of a s 128 certificate, I generally accepted her evidence. Her evidence did not directly contradict the prosecution case that Jun Jia “ripped off” James and Jackie for a substantial sum while buying and selling large quantities of methylamphetamine.

56. Another complication in this area of the case was the absence of any supporting evidence of the content of Mr Jia’s communications with James and Jackie at around the relevant times. He asserted that he had changed his SIM card and, when he put it back into his handset, he had messages from James and Jackie saying “they were worried about me”. [30] He also claimed they sent him text messages saying “you’re not dead yet and we haven’t found somebody to kill you”. [31] It was put to him by Senior Counsel for Mr Al Batat that records proved that he texted Jackie twice on 24 January 2017 and he did not dispute this. He said he could not remember what he said in the messages but volunteered:

“If I did, or if there were messages, I would have said, I would have said, ‘you find somebody to shoot me, do you think I will give you the money’.” [32]

30. Tcpt, 2 September 2020, p 151.

31. Tcpt, 2 September 2020, p 161.

32. Tcpt, 4 September 2020, p 234.

57. In many ways, Jun Jia was an unsatisfactory witness. However, despite various inconsistencies, his evidence relating to the drug dealing and the debt had a ring of truth to it and received some support from other evidence. Apart from the evidence of Wai Li and Brian Mao, one important piece of evidence corroborating the existence of the drug debt came from Ms “Maggie” Hsu. She said that Mr Fan told her (before the shooting) that “Little Jun” is “not a good person” and that he “grabbed other people’s drugs, tricked other people to get some money using some strategy”. [33] Putting aside the niceties of the translation, an issue which plagued the trial,[34] that is a reasonably accurate description of what Jun Jia said he did.

    33. Tcpt, 12 October 2020, p 1572.

    34. See, for example, R v Al Batat & Ors (No 14) [2020] NSWSC 1165.

58. I am satisfied beyond reasonable doubt that Jun Jia had acquired a drug debt to up-line suppliers by failing to pay them in full for drugs he on-sold to others, including Wai Li. I am satisfied the offenders were aware of this debt and that this provided some context to the shooting at the Temple.

The alleged shooting on 23 January 2017

59. Jun Jia gave evidence that on 23 January 2017 he was driving along Bexley Road in the passenger seat of a Black Honda CR-V with his friend, Stephen Shu, when suddenly the back window smashed. Both Mr Shu and Mr Jia said they saw a man in a Toyota Camry holding a silver handgun. They each provided a description of the man. The prosecution case was that the shooter was Mr Al Batat, that he discharged the weapon with intent to kill Jun Jia, and that he did this at the behest of Mr Luo, who had accepted a contract to kill Mr Jia. This shooting was the subject of count 1 in relation to which both Mr Al Batat and Mr Luo were found not guilty.

59. The prosecution relied on the evidence of Messrs Jia and Shu that this shooting occurred. Mr Jia did not report the shooting to police because he was “nervous” and he said:

“At that time many people saw that incident. I believe there must be somebody who would have reported to the police.” [35]

35. Tcpt, 3 September 2020, p 169.

61. However, in cross-examination he seemed to contradict himself by denying that the shooting occurred during “reasonably busy peak hour type traffic”. [36]

    36. Tcpt, 4 September 2020, p 232.

62. In any event, neither Mr Jia nor Mr Shu told the police that they had been subject to a shooting on Burwood Road at any time immediately proximate to the event. Police found no evidence that any member of the public had reported such a shooting. Furthermore, despite inquiries with repairers nominated by Mr Shu, police investigators uncovered no evidence to support the assertion that the damage to the car was repaired.

63. It was on the back of this peculiar absence of independent, supporting evidence that both Mr Al Batat and Mr Luo put to the jury that it could not be satisfied that the 23 January shooting occurred at all. Defence counsel also relied on the fact that Mr Jia did not report this alleged shooting incident to police when he was spoken to about the 1 February shooting at the Temple.

64. The prosecution also relied on evidence given by Leonard Rivers of conversations he claimed to have heard between Mr Luo and (by inference) Mr Al Batat. He claimed that Mr Luo received a phone call at about 8 o’clock on the night of the shooting where Mr Luo asked “You got him?” and then said “sick cunt”. After Mr Luo got off the ‘phone he told Mr Rivers that “he got him”. About 15 minutes later Mr Al Batat arrived at the apartment and went into Mr Fan’s room. [37] Rivers had given evidence that a small handgun was stored in Mr Fan’s room. Rivers said that he, Mr Luo and Mr Al Batat then “torched” the Toyota Camry used in the shooting. There was independent evidence of a Camry being burned in the area described by Rivers; the car was located there and a canvass of the area uncovered a neighbour who took a video of the car burning. [38] The car’s details matched that of a car sold by a Mr Zakaria (who had since died) to an “Asian” man some time earlier.

    37. Tcpt, 15 September 2020, p 620-621.

    38. Ex DDD.

65. The prosecution also relied on evidence that the registration number, make and car model of the car in which Mr Jia was traveling in was located on an electronic interrogation of Mr Luo’s telephone. Mr Rivers gave evidence that on 26 January 2017, Mr Luo told him: “looks like [Al Batat] missed the guy”. [39]

    39. Tcpt, 15 September 2020, p 630.

66. There are a number of bases upon which the jury may have acquitted both Mr Luo and Mr Al Batat of count 1. As the Prosecutor submitted, one possible explanation is that the jury had a reasonable doubt about the intention with which Mr Al Batat acted. The jury was not invited to consider any lesser, alternative verdict. On the other hand, the way the Prosecution case was pitched – that is, Mr Al Batat was acting on instruction from Mr Luo to shoot and kill Mr Jia – it would be surprising if the jury determined that the shooting occurred but that Mr Al Batat discharged the weapon with some other intention. It may be that the jury had a reasonable doubt whether the shooting occurred at all but that it is not necessarily the basis of its verdicts on that count.

67. In making findings of fact relevant to sentencing in relation to the events of 1 February 2017, the safest course is to disregard the evidence of the alleged shooting on 23 January 2017. This gives full effect to the acquittal of both Mr Al Batat and Mr Luo on count 1.

68. In any event, leaving aside the jury’s verdicts, I am not satisfied beyond reasonable doubt the incident occurred. The evidence of Jun Jia and Mr Shu lacked cogency and, in spite of the police investigation, received no support from any member of the public or from a repairer who replaced the window supposedly shattered by a bullet. Leonard Rivers’ evidence was not credible at all and must have been, rightly, rejected by the jury. If Rivers’ evidence on this subject was accepted, it is difficult to see how the jury reached verdicts of not guilty on count 1.

The shooting at Willoughby on 29 January 2017

69. The next incident in the sequence of events relates only to Mr Luo. It concerns an incident on 29 January 2017 when he discharged a firearm at the dwelling of Ada Chan. This was the offence under s 93GA(1) of the Crimes Act 1900 that was severed from the indictment before the trial, and to which Mr Luo pleaded guilty after the verdicts were returned.

70. There are agreed facts on sentence tendered as part of the prosecution bundle. [40] There is no suggestion that any of the other offenders played any part in this offence or had any knowledge of it. Further, while counsel for Mr Luo suggested it was part of a connected series of events for the purpose of the application of the totality principle, there was no suggestion that the facts of this offence impacted on the factual findings in relation to the other offences, except that it demonstrates that Mr Luo had access to a firearm before 1 February 2017.

    40. Ex SA.

71. At around 11:00pm on 29 January 2017, Mr Luo and Mr Rivers drove together in a rented car to the Willoughby area. Just before 2:00am, they parked near the residence of Ada Chan and Mr Luo exited the car carrying a .22 calibre firearm. Mr Luo fired three shots at the dwelling, hitting the top floor of the premises. There were two people inside the residence and Mr Luo did not know where they were situated. By his plea of guilty, Mr Luo acknowledged that he acted with reckless disregard for their safety.

72. Mr Luo then returned to the Kia Rio parked around the corner and Mr Rivers drove them back to Mr Luo’s apartment in Burwood.

73. The Prosecutor did not submit that the shooting was done in retribution for any drug debt or because Ada Chan was involved in the transaction that led to Jun Jia owing such a debt. However, he did submit:

“We now know, inherent in Luo's plea to the other shooting matter, that Mr Luo had access to a firearm. That provides some support for Mr Rivers' evidence that the firearm that was kept at the unit that Mr Luo and Mr Rivers and Mr Fan shared ‑ well, firstly that there was such a firearm and that that was the firearm that was used in that other incident. There were multiple firearms taken to Kennedy Street and the Crown says that indicates an intention to do more than just go in and intimidate.”[41]

41. Sentence Tcpt, 19 March 2021, p 19; See also Further Crown Submissions (MFI S7) at [4].

74. I accept that Mr Luo’s access to this firearm on 29 January 2017 is relevant to his access to guns on the day of the murder and, along with the evidence to which I will now turn concerning Mr Bayliss’ supply of at least one gun, supports the proposition that multiple firearms were taken to the Temple and this fact is relevant to the nature and extent of that criminal enterprise.

The supply of drugs and guns (or at least one gun) on 1 February 2017 and (deemed) supply of drugs by Mr Bayliss

75. On 1 February 2017, Mr Bayliss drove from the Central Coast to meet with Messrs Liu, Fan and Luo. He travelled with Martina Sellers (a pseudonym). [42] At that meeting, Mr Bayliss was supplied with methylamphetamine and he supplied the three men with at least one firearm.

    42. R v Al Batat & Ors (No 1) [2020] NSWSC 967.

The supply of methylamphetamine to Mr Bayliss

76. There was a statement of agreed facts relating to the charge of supplying methylamphetamine to Jacob Bayliss to which Messrs Liu, Fan and Luo pleaded guilty. [43]

    43. Prosecution’s bundle on sentence (Ex SA).

77. On the morning of 1 February 2017, Mr Bayliss sent a text message to Mr Liu saying, “jus woke up, I’m on my way to c u now…”. Mr Liu lived in an apartment block in Railway Parade at Burwood. Mr Bayliss invited Martina Sellers to accompany him and told her they would have some lunch in Sydney and “get on”. While they were driving down to Sydney, Mr Bayliss passed Ms Sellers a black backpack and asked her to count a bundle of money that totalled about $7,600. [44]

    44. Tcpt, 25 September 2020, p 1079.

78. CCTV footage proves that Mr Bayliss and Ms Sellers arrived at the apartment complex in Burwood at around 5:08pm. There were text messages between Mr Liu and Mr Bayliss arranging to meet. At 5:19pm Mr Liu, Mr Bayliss and Ms Sellers got out of the lift on Level 13 and went to Mr Liu’s apartment. Mr Bayliss gave Mr Liu $7600 in cash as payment for “two ounces of methylamphetamine (Ice)”. Mr Liu said he was waiting for “his brothers” (Messrs Luo and Fan). They arrived at 7:25pm and went up to the unit. Mr Liu gave the cash to Mr Fan and Mr Fan handed two ounces of Ice to Mr Bayliss.

79. The quantity of drugs involved in this transaction (2 ounces which is around 56 grams) was well in excess of the indictable quantity (5 grams) but substantially less than the commercial quantities (250 grams). It was not a street-level deal. Mr Bayliss tested the quality of the drugs by smoking it and confirmed the weight using scales. Mr Luo and Mr Fan left Mr Liu’s apartment at 8:40pm carrying the cash. Mr Liu stayed in the apartment with Mr Bayliss and Ms Sellers. Mr Bayliss and Ms Sellers left the apartment at about 9:08pm.

Supply of drugs by Mr Bayliss

80. The following day (2 February 2017) Mr Bayliss was a passenger in a black Hyundai when it was stopped by police in Woy Woy. Mr Bayliss’s behaviour aroused suspicion and police conducted a search of the car. Police located 41.9 grams of amphetamines and $4,450 in cash. It seems likely that the drugs located on 2 February 2017 was what was left of the drugs obtained from the co-offenders the day before.

81. The quantity possessed by Mr Bayliss exceeded the trafficable quantity for methylamphetamine (3g) and the supply charge was based on the deeming provisions of the Drugs Misuse and Trafficking Act 1985. I am satisfied that Mr Bayliss was a low-level drug dealer.

The gun supply by Mr Bayliss

82. The evidence of the supply of firearms came almost exclusively from Ms Martina Sellers. Her evidence received some general support from the CCTV footage and evidence of communications via telephone. Ms Sellers was an unsatisfactory witness and the important evidence upon which the prosecution relied came mostly when she adopted things she had said in a statement.

83. Ms Sellers made an induced statement to police on 29 June 2017 purporting to detail the events of the drive to Sydney and inside Mr Liu’s apartment. However, when the Prosecutor obtained leave to cross-examine her, she denied large portions of her statement. In particular, she denied seeing or hearing anything to do with guns on 1 February 2017. The evidence of what was in her statement was before the jury, and I rejected an application under s 136 of the Evidence Act 1995 (NSW) to limit the use of Ms Sellers’ evidence so it could only be used as evidence going to her credibility. [45] The jury were instructed that they could use the evidence of what was in her statement but provided with strong warnings to the effect that they should not act on this (hearsay) evidence in the absence of supporting evidence. [46]

    45. R v Al Batat & Ors (No 25) [2020] NSWSC 1388.

    46. Summing up Tcpt, 16 November 2020, p 76-80.

84. In the statement, Ms Sellers described the supply of two guns. She described one as a “long brown and black gun” which he took up to the apartment with him wrapped in a shirt. [47] That gun was the subject of count 2 and the jury convicted Mr Bayliss of supplying a firearm pursuant to that charge. The second gun was described as “another black gun that looked dodgy, as it had black duct tape wrapped around it”. [48] This second gun was the subject of count 3 in relation to which the jury found Mr Bayliss not guilty.

    47. Tcpt, 24 September 2020, p 1008 - 1009.

    48. Tcpt, 24 September 2020, p 1010.

85. Ms Sellers also referred to Mr Liu producing his own gun at one stage:

"I saw the Asian open a small black case that had a zipper and took out a small gun. This gun was not like a police gun, it was like a cute miniature cowboy gun, it was all black.” [49]

49. Tcpt, 24 September 2020, p 1009.

86. There were significant issues ventilated at trial with the way in which Ms Sellers’ statement was obtained. She was questioned in prison, days before her release, and she said she was high on drugs and did not remember providing the statement.

87. The mixed verdicts on counts 2 and 3 are explained by the contents of the CCTV footage taken from the lift. It depicts Mr Bayliss carrying something under his shirt. When this footage is slowed down and focussed upon, I am satisfied (as the jury must have been) that it depicts the butt of the gun described by Ms Sellers.

88. The Prosecutor relies on this evidence as part of its case that “the offenders had access to firearms in the period leading up to the shooting”. [50] In turn, he relies on this evidence to support the proposition that “multiple firearms” were taken to the Temple at the time of the murder.

    50. Prosecution submissions on sentence (MFI S6), p 2-3.

89. It is likely that the gun supplied by Mr Bayliss was one of the guns used in the shooting later that night. It has never been suggested that Mr Bayliss was complicit in that shooting and I proceed on the basis that he was unaware of the use that Messrs Luo and Liu (and possibly Fan) might make of the weapon. Even so, the events that transpired demonstrate graphically the danger and evil involved in the supply of firearms and Mr Bayliss clearly knew that he was supplying the gun to people involved in serious criminal activity, or at least the supply of drugs.

90. In my assessment, the gun supply charge is a very serious offence of its kind.

The murder and attempted murder of 1 February 2017

91. This brings me to the critical circumstances and factual findings regarding the murder of Mr Wu and the attempted murder of Jun Jia at the Kennedy Street premises on 1 February 2017.

The so-called Temple and the so-called Master

92. Before turning to the shooting, it is necessary to outline some further background concerning Jian Feng Weng (or “Sifu”) and the premises at Kennedy Street. The details were adduced from Mr Weng himself, Trong Nhan (“Steven”) Nguyen, Anna Lee, Peter Criniti and, to an extent, Mr Jia.

93. Mr Weng was the owner and occupier of the house in Kennedy Street for a number of years. It had been converted into what was described as a private and makeshift Buddhist Temple sometime in 2011. [51] In 2014, there was a stabbing murder at the Temple involving two of Mr Weng’s students or “disciples”. There was no direct evidence that the offenders were aware of the earlier homicide, although there was evidence that the circumstances were widely known. [52] There was a suggestion that the Temple was known as a dangerous place.

    51. Tcpt, 29 September 2020, p 1178-1179.

    52. Tcpt, 8 September 2020, p 336; Tcpt, 17 September 2020, p 765; Tcpt, 1 October 2020, p 1285.

94. Mr Weng was arrested and taken into custody in April 2016. Mr Luo was one of Mr Weng’s “disciples” and lived at the Temple for a period of time. Mr Weng entrusted Mr Luo to look after the Temple while he was in custody. [53]

    53. Tcpt, 29 September 2020, p 1179.

95. Mr Weng was released from custody on 31 January 2017, the day before the shooting. He returned home to find that the Temple had been ransacked and valuable property had been stolen. Mr Weng contacted Peter Criniti, a friend who he had met in Silverwater Gaol, and asked for a loan to allow him to clean up the house and replace household items that had been stolen. [54] Mr Criniti gave evidence that he went to Mr Weng’s house and saw that it had been “trashed” and “vandalised”. [55] Ms Li had visited the Temple during Mr Weng’s incarceration and said the premises had been “trashed” from as early as May 2016. She told Mr Weng about this when she visited him in gaol. [56] The value of the property was estimated to be about $500,000 and included designer clothing worth $100,000, a massage chair, and a collection of fine wine including several bottles of first-growth Bordeaux and a highly regarded but overpriced domestic shiraz. [57] Mercifully, how it was that a Buddhist “Master” came by this kind of property, and to what use it was put, was not explored in evidence. I infer that there was more to “Sifu” and his Temple than met the eye or was explored in the court case. There was evidence of drug use and inferentially, other criminal activity taking place at the Temple. There was also evidence that Mr Weng had a number of followers or disciples and that he commanded respect and perhaps fear within the community in which he was known.

    54. Tcpt, 29 September 2020, p 1179.

    55. Tcpt, 2 October 2020, p 1331.

    56. Tcpt, 8 October 2020, p 1519-1520.

    57. Tcpt, 30 September 2020, p 1245.

96. These seemingly random details were relevant at the trial because they explained why various critical players and witnesses were present at the Temple on 1 February 2017.

The communications preceding, and leading to, the attendance of relevant players at the Temple

97. By WeChat message at about 2:15pm on 1 February 2017, Mr Weng summoned Jun Jia to the Temple to arrange the return of his wife’s blue Jaguar car. [58] Mr Weng’s evidence of this was supported by the evidence of Anna Lee, [59] and the telephone records tendered at trial.

    58. Tcpt, 29 September 2020, p 1182; Tcpt, 1 October 2020, p 1274; Ex JJJJ.

    59. Tcpt, 8 October 2020, p 1520.

98. Meanwhile, Mr Weng was attempting to contact Mr Luo through WeChat because he held Mr Luo responsible for the missing property and damage to the Temple. [60]

    60. Tcpt, 29 September 2020, p 1181; Tcpt, 1 October 2020, p 1272-1274.

99. Mr Al Batat arrived at the Temple in the early evening between 5:00pm and 7:00pm. [61] He was there to help clean up the house. Steven Nguyen, Mr Weng’s friend and carer, was already at the Temple with Mr Weng. Mr Weng gave evidence that he started talking to Mr Al Batat about the fact that he wanted to get Mr Luo over to the Temple. Mr Weng knew that Mr Al Batat and Mr Luo were friends. He asked if he knew where Mr Luo was and, at that stage, Mr Al Batat said he did not know. [62]

    61. Tcpt, 29 September 2020, p 1181; Tcpt, 4 November 2020, p 2495.

    62. Tcpt, 30 September 2020, p 1251-1252.

100. At 7:59pm, Mr Weng (under the username ‘Blood is seen where the sword goes’) sent a WeChat message to Mr Luo saying, “Where are you my brother?” [63] At 8:49pm, Mr Luo responded saying “Who is it?” and Mr Weng responded at 9:00pm with “Your master”. [64] Mr Luo had left Mr Liu’s apartment in the company of Mr Fan about nine minutes earlier.

     63. Ex LLL.

     64. Ex LLL.

101. At around 9:08pm, Mr Weng, Mr Al Batat and Mr Nguyen decided to order pizza. There was further communication at around this time between Mr Weng and Mr Luo and Mr Luo said he would come over “shortly”. The pizza order was despatched at around 9:30pm according to investigations made by the police. [65] Messrs Jia and Wu arrived at the Temple after the three men finished eating and Mr Jia gave evidence that they saw pizza boxes on the table. Mr Weng made several attempts to find out when Mr Luo would arrive but did not receive a clear or satisfactory response. Mr Weng then asked Mr Al Batat to contact Mr Luo on his behalf and Mr Al Batat made a ‘phone call to Mr Luo at about 10:01pm. [66]

     65. Tcpt, 26 October 2020, p 2100.

     66. Ex JJJJ.

102. After the ‘phone call from Mr Al Batat at 10:01pm, Mr Luo attempted to contact Mr Liu and Mr Fan but was unsuccessful. At about 10:04pm CCTV captured Mr Rivers and Mr Luo leaving Mr Luo’s Burwood apartment in a Kia Rio. Mr Luo finally contacted Mr Fan at 10:10pm and had a ‘phone call that lasted 45 seconds. Mr Fan called and spoke to Mr Liu one minute later. CCTV captured Mr Liu leaving his apartment in Burwood at 10:18pm and Messrs Liu and Fan driving from Burwood in Mr Fan’s gold Toyota Prado at 10:35pm. By this stage, Messrs Luo and Rivers were already in Guildford and waiting for the other two men to arrive.

1. Supply prohibited drug, after a discount of 5% for the plea of guilty – 9½ months.

3. You are sentenced to an aggregate sentence of 22 years commencing on 5 June 2017 and expiring on 4 June 2039 with an aggregate non-parole period of 16½ years commencing on 5 June 2017 and expiring on 4 December 2033.

4. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I am required to warn you that the Act applies to the offences and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Jacob Blake Bayliss:

1. You are convicted of the offences of supply a firearm and sentenced to a fixed term of 18 months imprisonment commencing 13 August 2022 and expiring on 12 February 2024.

2. You are convicted of the offence of supplying a prohibited drug and sentenced to a fixed term of 3 month imprisonment commencing on 13 August 2022 and expiring on 12 November 2022.

3. Subject to the decisions of the parole authority, you will be eligible for release to parole at the expiration of the non-parole period, whereupon your will subject to the balance of term imposed by Judge Bright in the District Court on 13 November 2020.

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Endnotes

Decision last updated: 19 November 2021