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R v Yiu; R v Yau

R v Yiu; R v Yau

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Case Copied 27 July 2018 40 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

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Medium Neutral Citation: R v Yiu; R v Yau [2018] NSWCCA 155
Hearing dates: 06 April 2018
Date of orders: 06 April 2018
Decision date: 27 July 2018
Before: Meagher JA at [1];
Rothman J at [2];
Garling J at [138]
Decision:
2016/50553; 2016/115507:
(1)   Appeal Allowed;

(2)   Sentence imposed on the respondent by the District Court on 12 March 2018 be varied by imposing a non-parole period of 4 years’ imprisonment commencing 14 April 2016, with a remainder of term of a further 2 years’ imprisonment;

(3)   The respondent is first eligible for parole on 13 April 2020.

2016/114621:
(1)   Appeal Allowed;

(2)   Sentence imposed on the respondent by the District Court on 12 March 2018 be varied by imposing a non-parole period of 4 years’ imprisonment commencing 13 April 2016, with a remainder of term of a further 2 years’ imprisonment;
(3)   The respondent is first eligible for parole on 12 April 2020.
Catchwords: CRIMINAL LAW – sentence – Crown appeal – drug offence – manifest inadequacy – plea of guilty by each respondent – objective seriousness below mid-range, but not at lowest level – incorrect classification of objective seriousness by sentencing Judge – sentence manifestly inadequate – discretion to intervene exercised – appeal granted
Legislation Cited: Crimes (Appeal and Review) Act 2001 (Cth)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Attorney General’s Application Under S 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Baines v R [2016] NSWCCA 132
Baxter v R [2007] NSWCCA 237
Crimes (Sentencing Procedure) Act 1999 (NSW)
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Frigiani v R [2007] NSWCCA 81
Green v the Queen; Quinn v the Queen [2011] HCA 49 (2011) 244 CLR 462; [2011] HCA 49
Hill v R [2012] NSWCCA 265
House v The King (1936) 55 CLR 499; [1936] HCA 40
Koh v R [2013] NSWCCA 287
Lam v R [2014] NSWCCA 50
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Parente v R [2017] NSWCCA 284
Porter v R [2008] NSWCCA 145
R v AB [2018] NSWCCA 113
R v GWM [2012] NSWCCA 240
R v JW (2010) 77 NSWLR 7; (2010) 199 A Crim R 486; [2010] NSWCCA 49
R v Medd (a Pseudonym) [2016] NSWCCA 216
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42
see R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
Tuvunivono v R [2013] NSWCCA 176
Category: Principal judgment
Parties:
2016/50553; 2016/115507
The Queen (Appellant)
Cheuk Hang…

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.

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Details

Case: [2018] NSWCCA 155
Decision Date: 27 July 2018

CaseChat Overview and Summary

The respondents, Yiu and Yau, were convicted of drug trafficking offences and sentenced by the sentencing judge. The Crown appealed the sentences imposed, arguing they were manifestly inadequate. The appeal was heard in the Court of Appeal. The central legal issues were whether the sentences imposed were manifestly inadequate and whether the sentencing judge erred in assessing the objective seriousness of the offences.

The court examined the principles of sentencing, focusing on the concept of manifest inadequacy. It determined that although the objective seriousness of the offences was below the mid-range, it was not at the lowest level. The court noted that the sentencing judge had incorrectly classified the objective seriousness, leading to an inadequate sentence. The court exercised its discretion to intervene, finding that the sentences were indeed manifestly inadequate. The appeal was allowed based on the misclassification of the objective seriousness and the resulting inadequacy of the sentences imposed.

The Court of Appeal quashed the sentences and remitted the matter to the sentencing judge for re-sentencing. The court emphasised that the sentencing judge must correctly classify the objective seriousness of the offences and impose a sentence that reflects that classification. The court did not specify a particular sentence but left it to the sentencing judge to re-evaluate the matter in accordance with the law.

Orders