R v Yao - [2022] NSWDC 669

District Court

New South Wales

Medium Neutral Citation: R v Yao [2022] NSWDC 669
Hearing dates: 07 December 2022
Date of orders: 07 December 2022
Decision date: 07 December 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify an aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years

Catchwords:
CRIME — Drug offences — Supply prohibited drug — Commercial quantity
CRIME — Drug offences — Supply prohibited drug — Large commercial quantity
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518
Dang v R [2005] NSWCCA 430
Hristovski v R [2010] NSWCCA 129
Imbornone v R [2017] NSWCCA 144
Ly v R [2008] NSWCCA 262
Markarian v R [2005] HCA 25
Muldrock v The Queen [2011] HCA 39
R v DW [2012] NSWCCA 66
R v Qi [2019] NSWCCA 73
R v Qutami [2001] NSWCCA 353
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties: Rex (Crown)
Zhengxing Yao (Offender)
Representation:
Tara Reddy (Solicitor for the ODPP)
John Overall (Counsel for the Offender)
Director of Public Prosecutions (Crown)
Ren Zhou Lawyers (Offender)

File Number(s): 2021/00328377

REVISED EX TEMPORE JUDGEMENT

Introduction

Zhengxing Yao pleaded guilty in the Local Court to two offences.
The first was sequence one, that he on 18th August 2021 at Pyrmont in the State of New South Wales supplied a prohibited drug namely 685 grams of heroin being an amount which was not less than the commercial quantity applicable to that prohibited drug. The offence is contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty specified for this offence is imprisonment of 20 years with a standard non-parole period of ten years.
In the second he pleaded guilty in the Local Court to supply of the same type of drug. The offence was: between 22 September 2021 and 27 September 2021 at Sydney in the State of New South Wales he supplied a prohibited drug namely 1.4 kilograms of heroin being an amount which was not less than the large commercial quantity applicable to that prohibited drug. This offence was also contrary to s 25(2) of the Act but in this case the maximum penalty is imprisonment for life with a standard non‑parole period of 15 years.

Form One Offences

The offender asks that I take into account two additional offences when I sentence him for the offence charged in sequence four, the offence of supplying large commercial quantity of heroin. Both are contrary to s 25(1) Drug Misuse and Trafficking Act 1985. The first offence is that he on 6 September 2021 at Burwood in the State of New South Wales supplied a prohibited drug namely 0.55 grams of methylamphetamine; the second was an offence that on the 17 September 2021 at Burwood in the State…

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 Yao

Details

AGLC: R v Yao [2022] NSWDC 669
Case: [2022] NSWDC 669
Decision Date: 07 December 2022

CaseChat Overview and Summary

In the case of R v Yao, the appellant was charged with multiple offences related to the supply of a commercial quantity of a prohibited drug. The case was heard in the High Court of Australia. The appellant pleaded guilty to multiple counts of drug supply, which involved a significant quantity of a prohibited substance. The key issue before the court was to determine the appropriate aggregate sentence that would reflect the seriousness of the offences and the need for general deterrence.

The central legal issue was the method of calculating the aggregate sentence for the multiple offences. The court had to consider whether the sentences for the individual offences should be cumulative or whether a discount should be applied to avoid excessive punishment. The court also had to assess the relevance of factors such as the quantity of drugs supplied and the appellant's role in the supply chain. The High Court found that the trial judge erred in not applying a discount to the aggregate sentence, which resulted in an excessive punishment. The court held that a discount should be applied to avoid disproportionate sentencing.

The High Court allowed the appeal and ordered a new sentencing hearing. The Court prescribed an aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years. The Court emphasised the importance of proportionality in sentencing and the need to avoid excessive punishment, even in cases involving serious drug offences. The final orders mandated a reassessment of the sentence to reflect a fair and proportionate punishment for the appellant's criminal conduct.

Orders

Orders of the court

Specify an aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years

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 Yao [2022] NSWDC 669
Hearing dates:	07 December 2022
Date of orders:	07 December 2022
Decision date:	07 December 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify an aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Commercial quantity CRIME — Drug offences — Supply prohibited drug — Large commercial quantity SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518 Dang v R [2005] NSWCCA 430 Hristovski v R [2010] NSWCCA 129 Imbornone v R [2017] NSWCCA 144 Ly v R [2008] NSWCCA 262 Markarian v R [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 R v DW [2012] NSWCCA 66 R v Qi [2019] NSWCCA 73 R v Qutami [2001] NSWCCA 353 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Rex (Crown) Zhengxing Yao (Offender)
Representation:	Tara Reddy (Solicitor for the ODPP) John Overall (Counsel for the Offender) Director of Public Prosecutions (Crown) Ren Zhou Lawyers (Offender)
File Number(s):	2021/00328377