R v Wu

Case [2019] NSWDC 908 13 December 2019

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District Court

New South Wales

Medium Neutral Citation: R v Wu [2019] NSWDC 908
Hearing dates: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to a total term of 2 years imprisonment. I direct the offender be released at the expiration of 12 months imprisonment upon entering a recognizance to be of good behaviour for 18 months; forfeiture order for $10,000

Catchwords: CRIME – Commonwealth - sentence – importing tobacco products with intent to defraud revenue – possess foreign travel documents – possess proceeds of crime – totality of criminality – course of conduct – principal importer - modest quantities of tobacco products for financial gain - plea of guilty – cooperation with authorities – prior good character – comparative sentencing.
Legislation Cited: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth).
Foreign Passports (Law Enforcement and Security) Act 2005.
Cases Cited: Ali v R [2011] NSWCCA 60
Attorney General's Application (No 1) [2002] 56 NSWLR 147
Hili v R [2011] HCA 45
Holland v R [2011] NSWCCA 65
Johnson v R [2004] 78 ALJR 616
Jones v R [2010] 242 CLR 520
Mill v R [1988] 166 CLR 59
Pearce v R [1998] 194 CLR 610
DPP(Cth) v De La Rosa [2010] NSWCCA 194
R v Gow [2015] NSWCCA 208
R v Holder [1983] 3 NSWLR 245
R v Saleh [2015] NSWCCA 299
R v XX (2009) 195 A Crim R 38
Samardali v R [2018] WASCA 220.
Young v R [2016] VSCA 149
Zhang v R [2017] SASCFC 5
Category: Sentence
Parties: Regina (Crown)
Xiang Wu (offender)
Representation:
Counsel:
Mr Wilkinson (offender)
Solicitors:
Ms Cathcart (DPP)

File Number(s): 2019/00052099
Publication restriction: No

Judgment

The matter of Xiang Wu came before me today for sentence; the offender having pleaded guilty at the Local Court to three offences, for which he was committed for sentence to this Court. There are a number of other offences, four in all, to be taken into account on a s 16BA Crimes Act 1914(Cth) schedule, or Form. Hereinafter, I will refer to the Crimes Act 1914(Cth) as, "the Act"; of course, as the principal relevant legislative provision to this sentencing exercise. As the offender pleaded guilty, in my view, at the first reasonable opportunity, the offender shall receive a discount of 25% upon what would otherwise be the appropriate sentence to recognise the utilitarian benefit of the pleas of guilty, and his facilitation of the course of justice by his pleas and his cooperation, if I could use that expression in a loose way, by reason of admissions made to investigators, in respect of part of the matters that are before me.
The offender was born in January 1984. The offences with which I am concerned were committed between October 2018 and mid‑February 2019. There is a detailed Statement of Facts from the Commonwealth Director of Public Prosecutions office, which has been most helpful. I will summarise that. I do not need to…

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 Wu

Details

AGLC: R v Wu [2019] NSWDC 908
Case: [2019] NSWDC 908
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the matter of R v Wu, the appellant was charged with offences under the Commonwealth Crimes Act, including importing tobacco products with the intent to defraud revenue, possessing foreign travel documents, and possessing proceeds of crime. The case was heard in the High Court of Australia. The central issue was to determine an appropriate sentence for the appellant, who had pleaded guilty to the charges, given the totality of his criminal conduct and his cooperation with authorities.

The court considered several factors, including the nature of the offences, the appellant's role as the principal importer of tobacco products, and the modest quantities of goods involved. The court also noted the appellant's prior good character and his cooperation with authorities, which included providing information that led to the apprehension of other individuals involved in similar activities. The court examined the principle of totality, which required a balanced consideration of all criminal conduct to avoid excessive punishment. It also looked at the appellant's course of conduct, which demonstrated a pattern of offending for financial gain, and the seriousness of possessing foreign travel documents.

In delivering the judgment, the court concluded that the appellant's actions warranted a significant penalty. However, it took into account the mitigating factors and the appellant's cooperation with authorities. The court imposed a sentence of two years imprisonment but directed that the appellant be released at the expiration of 12 months, subject to conditions. Additionally, the court issued a forfeiture order for $10,000. The final orders included the specified sentence and the forfeiture order.

Orders

Orders of the court

Sentenced to a total term of 2 years imprisonment. I direct the offender be released at the expiration of 12 months imprisonment upon entering a recognizance to be of good behaviour for 18 months; forfeiture order for $10,000

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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Citations

AGLC Citation

R v Wu [2019] NSWDC 908

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

R v Holder
[2019] SASCFC 73 Para 12

…encing for a large number of offences, including taking into account matters on a Form 1, are the observations of Street CJ, in the R v Holder [1983] 3 NSWLR 245. There his Honour, at 260, referred to the practicalities of applying the concept of "totality of sentencing".…
Samardali v The Queen
[2018] WASCA 220 Para 45

…he judges do not mind, ignore my colleagues in the District Court and cite some of the appellate decisions that are referred to Samardali v The Queen [2018] WASCA 220. That involved one count of importing tobacco products with intent to defraud, and one count of possessing tobacco products, knowing they had been im…
R v Zhang
[2017] SASCFC 5 Para 47

…There is another decision of Zhang v The Queen [2017] SASCFC 5. There were eight offences in total. The amount defrauded from the Commonwealth was in excess of $460,000, a total sentence of two years and seven months' imprisonment, as I understand it, concurrent upon the fixed sentences, leaving a total sentence o…
Young v The Queen
[2016] VSCA 149 Para 48

…ropriate sentence. But the figures provide some guidance, in terms of the comparative quantities of tobacco involved. The matter of Young v The Queen [2016] VSCA 149, possessing tobacco products, knowing that they had been imported, was concerned with 9,000,000 cigarettes and 22,969 kilograms of tobacco. The total…
R v Saleh
[2015] NSWCCA 299 Para 49

…His appeal, not surprisingly, was dismissed. Then there is a New South Wales decision of R v Saleh [2015] NSWCCA 299, where Mr Saleh ‑ another case I referred to in the decision of Li, the sentencing matter following up on the sentencing of Mr Liu , that involved 2,250 kilograms of loose tobacco. The revenue defraud…
Director of Public Prosecutions (Cth) v Gow
[2015] NSWCCA 208 Para 44

…tive cases. I particularly note what McLennan CJ at CL said in Holland v The Queen [2011] NSWCCA 65, particularly at [3], and the decision of R v Gow [2015] NSWCCA 208, particularly in the joint judgment of Basten JA and Hamill J at [35]‑[52]. In Holland , his Honour reflected upon his categorisation of drug importe…
Western Export Services Inc v Jireh International Pty Ltd
[2011] HCA 45

…and Security) Act 2005. Cases Cited: Ali v R [2011] NSWCCA 60 Attorney General's Application (No 1) [2002] 56 NSWLR 147 Hili v R [2011] HCA 45 Holland v R [2011] NSWCCA 65 Johnson v R [2004] 78 ALJR 616 Jones v R [2010] 242 CLR 520 Mill v R [1988] 166 CLR 59 Pearce v R [1998] 194 CLR 610 DPP(Cth) v De La Rosa […
R v Holland
[2011] NSWCCA 65 Para 44

…ions, cited caution in relation to reliance upon supposedly comparative cases. I particularly note what McLennan CJ at CL said in Holland v The Queen [2011] NSWCCA 65, particularly at [3], and the decision of R v Gow [2015] NSWCCA 208, particularly in the joint judgment of Basten JA and Hamill J at [35]‑[52]. In Ho…
R v SA, DD and Es
[2011] NSWCCA 60 Para 33

…That particular authority is the decision of Ali v The Queen [2011] NSWCCA 60. This was an offender sentenced to six years' imprisonment, with three years and six months non‑parole, in respect of knowingly dealing with the proceeds of crime to be $490,000 and possessing false instruments, with intent to use to defr…
Hili v The Queen
[2010] HCA 45 Para 42

…So far as adequate punishment is concerned, the Crown properly invites me to consider the dictum in Hili v The Queen; Jones v The Queen [2010] 242 CLR 520. In that regard, I would understand it to bring some of the material before me into context. I am required to have regard to the comparative sentences that…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 44

…JA and Hamill J at [35]‑[52]. In Holland , his Honour reflected upon his categorisation of drug importers in the earlier decision of R v De La Rosa [2010] NSWCCA 194, a judgment that still stands so far as his Honour's analysis of relevance of mental illness or disability in sentencing, or at least his summarising o…
Johnson v The Queen
[2004] HCA 15 Para 12

…I need only, for the present purposes, refer to the decision Johnson v The Queen [2004] 78 ALJR 616; the earlier decision of Mill v The Queen [1988] 166 CLR 59; and the summary of principles set out by Hall J in his 2010 decision in R v XX (2009) A Crim R 38, particularly at [52] of that judgment, where his Ho…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 5

…lation Form 1 matters under State Law; that is, the decision of the Court of Criminal Appeal reported as Attorney General's Application (No 1) [2002] 56 NSWLR 147.…
Pearce v The Queen
[1998] HCA 57 Para 17

…dship to his family, as I have earlier pointed out. I am required, as the Crown points out, by reference to the decision of Pearce v The Queen [1998] 194 CLR 610, particularly in the majority judgment at [45], to fix an appropriate sentence for each offence, and then turn my mind to the issues of concurrency a…
Mill v The Queen
[1988] HCA 70 Para 12

…I need only, for the present purposes, refer to the decision Johnson v The Queen [2004] 78 ALJR 616; the earlier decision of Mill v The Queen [1988] 166 CLR 59; and the summary of principles set out by Hall J in his 2010 decision in R v XX (2009) A Crim R 38, particularly at [52] of that judgment, where his H…

Legislation cited in this decision · 5

Crimes Act 1914 (Cth)
2 mentions (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 33)
Customs Act 1901 (Cth)
1 mention (from Para 3)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)
1 mention (from Para 3)
Proceeds of Crime Act 2002 (Cth)
1 mention (from Para 27)

Medium Neutral Citation:	R v Wu [2019] NSWDC 908
Hearing dates:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to a total term of 2 years imprisonment. I direct the offender be released at the expiration of 12 months imprisonment upon entering a recognizance to be of good behaviour for 18 months; forfeiture order for $10,000
Catchwords:	CRIME – Commonwealth - sentence – importing tobacco products with intent to defraud revenue – possess foreign travel documents – possess proceeds of crime – totality of criminality – course of conduct – principal importer - modest quantities of tobacco products for financial gain - plea of guilty – cooperation with authorities – prior good character – comparative sentencing.
Legislation Cited:	Crimes Act 1914 (Cth) Customs Act 1901 (Cth). Foreign Passports (Law Enforcement and Security) Act 2005.
Cases Cited:	Ali v R [2011] NSWCCA 60 Attorney General's Application (No 1) [2002] 56 NSWLR 147 Hili v R [2011] HCA 45 Holland v R [2011] NSWCCA 65 Johnson v R [2004] 78 ALJR 616 Jones v R [2010] 242 CLR 520 Mill v R [1988] 166 CLR 59 Pearce v R [1998] 194 CLR 610 DPP(Cth) v De La Rosa [2010] NSWCCA 194 R v Gow [2015] NSWCCA 208 R v Holder [1983] 3 NSWLR 245 R v Saleh [2015] NSWCCA 299 R v XX (2009) 195 A Crim R 38 Samardali v R [2018] WASCA 220. Young v R [2016] VSCA 149 Zhang v R [2017] SASCFC 5
Category:	Sentence
Parties:	Regina (Crown) Xiang Wu (offender)
Representation:	Counsel: Mr Wilkinson (offender) Solicitors: Ms Cathcart (DPP)
File Number(s):	2019/00052099
Publication restriction:	No