R v Yu

Case [2019] NSWDC 904 1 August 2019

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District Court

New South Wales

Medium Neutral Citation: R v Yu [2019] NSWDC 904
Hearing dates: 21 June 2019
Decision date: 01 August 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Convicted – sentenced to a term of imprisonment to be served by way of an Intensive Correction Order

Catchwords: CRIME – Commonwealth - sentence – attempt to import commercial quantity border controlled precursor – not the intended recipient – took possession and control – intentional knowledge – recklessness – impulsive act – Chinese citizen – resident visa – no association with drugs or criminal activity – low risk of re-offending -
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth) (Crim Code)
Migration Act 1958 (Cth)
Cases Cited: Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
HAT v R [2011] VSCA 427
Hili & Jones v R [2010] HCA 45
R v Chandler [2010] QCA 21
R v De La Rosa [2010] NSWCCA 194
R v El‑Haddad [2015] NSWCCA 10
R v Fowler [2003] NSWCCA 321
R v Holland [2011] NSWCCA 65
R v Hull [2016] NSWSC 634
R v Mobbs [2005] NSWCCA 371
R v Morabito (1992) 62 A Crim R 82
R v Napala [2018] NSWCCA 191
R v Olbrich (1999) 199 CLR 210
R v Tranter [2013] SASCFC 61
R v Webb [2004] NSWCCA 330
R v Xiao [2018] NSWCCA 4
Category: Sentence
Parties: Regina (Crown)
Chengwei Yu (offender)
Representation:
Counsel:
Mr Gleeson (DPP (Cth))
Ms McGee (offender)
Solicitors:

File Number(s): 2016/00318774
Publication restriction: No

Judgment

Chengwei Yu appears today for sentence in relation to a charge of attempting to import a substance between 15 June 2016 and 22 June 2016, the substance being a border controlled precursor, namely ephedrine, and the quantity imported being a commercial quantity.
The plea of guilty was entered in circumstances where there was an acknowledgment by the prisoner of his knowledge of a substance being inside the relevant imported packages, but being reckless as to whether, in fact, it was a border controlled precursor. This is an offence contrary to a combination of s 11.1(1) and 307.11(1) Criminal Code Act 1995 (Cth) and carries a maximum penalty of 25 years imprisonment, and/or 5,000 penalty units. The prisoner was in custody from the date of his arrest, 22 June 2016, until his release on bail on 8 September 2016.
The prisoner was committed for trial on 29 March 2017, and it is agreed that he pleaded guilty at the time of the proposed commencement of his trial. I will come back to the issue of an appropriate discount to represent the utilitarian benefit of the plea of guilty.
There is an Agreed Statement of Facts in relation to sentence. There are some details in it I need not dwell upon, but the essence of the facts I will relate at this particular point. A consignment was sent from China on 15 June 2016 and was addressed to a person Lin Minghui, at…

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 Yu

Details

AGLC: R v Yu [2019] NSWDC 904
Case: [2019] NSWDC 904
Decision Date: 01 August 2019

CaseChat Overview and Summary

The case of R v Yu involved a Chinese national, Yu, who was found guilty of attempting to import a commercial quantity of a border controlled precursor. The dispute arose from an incident where Yu was not the intended recipient of the shipment but had taken possession and control of the substance. The case was heard in the Supreme Court of Queensland. The central issue before the court was whether Yu's actions demonstrated intentional knowledge or recklessness, and whether these actions were impulsive. The court also considered Yu's background, including his residency status and lack of prior association with drugs or criminal activities, to assess the risk of re-offending.

The court was required to decide whether Yu's actions constituted a serious criminal offence warranting a substantial sentence, or if the circumstances surrounding the offence warranted a more lenient approach. In particular, the court needed to weigh the seriousness of the offence against Yu's background and the circumstances under which he acted. The court examined whether Yu's actions were impulsive or if they demonstrated a level of intentional knowledge or recklessness that would warrant a harsher penalty.

In its reasoning, the court found that while the offence was serious, Yu's lack of prior criminal history and his status as a resident on a visa played a significant role in mitigating the severity of the sentence. The court held that Yu's actions were impulsive and not premeditated, and that there was no evidence to suggest that Yu had any association with drugs or criminal activities prior to this incident. The court concluded that Yu was a low risk of re-offending and that an intensive correction order would serve both as a punishment and as a means of rehabilitation. The court ordered that Yu be convicted and sentenced to a term of imprisonment to be served by way of an Intensive Correction Order.

Orders

Orders of the court

Convicted – sentenced to a term of imprisonment to be served by way of an Intensive Correction Order

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

R v Yu [2019] NSWDC 904

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Phelps; R v Zalapa [2018] NSWCCA 191
Citation 1 (Para 2)

…verse to the offender, which are not evidence on the face of the document, and I understand that is some reference to a recent decision of R v Napala [2018] NSWCCA 191, particularly at [6]. But it is not a practical matter of concern in the way in which this sentencing exercise has been conducted.…
Xiao v R [2018] NSWCCA 4
Citation 2 (Para 19)

…ly points out, to have regard to the guilty plea. It may fix a discount having regard to the utilitarian value of the plea of guilty, citing R v Xiao [2018] NSWCCA 4. It is agreed between the parties that the utilitarian benefit of the plea of guilty entitles the prisoner, prima facie to a discount of 10%, and I p…
R v Hull [2016] NSWSC 634
Citation 3 (Para 26)

…e case, could be relevant in a material respect. But not, ultimately, in this matter. I was, in that latter regard, taken to the decision of R v Hull [2016] NSWSC 634. There is not the same degree of intensity of effect upon the prisoner that occurred in that matter. That having been said I note the prisoner has be…
Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
Citation 4 (Para 68)

…Commonwealth law. In this particular regard, the other decision I need to refer to is the decision of Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208 and particularly, the judgment of Basten JA, at [35] ‑ [52].…
El-Haddad v The Queen [2015] NSWCCA 10
Citation 5 (Para 9)

…cter of the possession. I was taken to two authorities; R v Tranter [2013] SASCFC 61, and particularly, a New South Wales decision of R v El‑Haddad [2015] NSWCCA 10, where particularly Leeming J, in considering the legislation, adopted what had been held by the South Australian Full Court in Tranter ; upholding tha…
R v Tranter [2013] SASCFC 61
Citation 6 (Para 9)

…with" the item in a way that might change the character of the item, or the character of the possession. I was taken to two authorities; R v Tranter [2013] SASCFC 61, and particularly, a New South Wales decision of R v El‑Haddad [2015] NSWCCA 10, where particularly Leeming J, in considering the legislation, adopte…
TAN v The Queen [2011] VSCA 427
Citation 7 (Para 25)

…ilst the potential deportation of a person may be a relevant matter, as discussed by the Victorian Court of Appeal in the decision of HAT v The Queen [2011] VSCA 427, this case does not fit within the rubric of the "exceptional case" required to be established in the context of a consideration of s.16A(2), and its…
R v Holland [2011] NSWCCA 65
Citation 8 (Para 32)

…known, in respect of ‘border controlled drugs’. I particularly refer to [216] ‑ [254]. Within a year, his Honour, in a decision of R v Holland [2011] NSWCCA 65, particularly at [3], reflected upon his categories of offending, set out in R v De La Rosa . He said this:…
Hili v The Queen [2010] HCA 45
Citation 9 (Para 68)

…Of course, I am mindful of what the High Court has said in Hili v The Queen; Jones v The Queen [2010] HCA 45, particularly at [54], by example, about the usefulness of a comparative sentencing where it is appropriate across jurisdictions given, in Commonwealth matters, the need for ‘equal justice’. Allowing for,…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 10 (Para 32)

…f offending, has been the subject of comment in a range of decisions by the Court of Criminal Appeal. McClelland J, in the decision of R v De La Rosa [2010] NSWCCA 194, sought to analyse many, many cases of importation, and try to categorise them by reference to marketable and commercial quantities, as they were the…
R v Chandler [2010] QCA 21
Citation 11 (Para 10)

…dination, which I think is self‑evident from the facts. There was also a submission made by the defence, by reference to a decision of R v Chandler [2010] QCA 21, per Keane JA, as his Honour was at that point, where his Honour at [24] noted that the legislature had prescribed, for a particular quantity of precur…
R v Mobbs [2005] NSWCCA 371
Citation 12 (Para 9)

…y rare indeed. The relevant authority cited by the Crown, in relation to the issue of unplanned, impulsive, and opportunistic offending, is R v Mobbs [2005] NSWCCA 371 [50].…
R v Webb [2004] NSWCCA 330
Citation 13 (Para 27)

…a "form of punishment" that could be taken into account, citing two decisions, one of R v Fowler [2003] NSWCCA 321, and another decision of R v Webb [2004] NSWCCA 330. Whilst the character of the conditions, which I summarise from the Crown's statement of facts, is a relevant matter, it is ultimately not a signific…
R v Fowler [2003] NSWCCA 321
Citation 14 (Para 27)

…urt may determine that the time spent on bail may be a "form of punishment" that could be taken into account, citing two decisions, one of R v Fowler [2003] NSWCCA 321, and another decision of R v Webb [2004] NSWCCA 330. Whilst the character of the conditions, which I summarise from the Crown's statement of facts, i…
R v Olbrich [1999] HCA 54
Citation 15 (Para 30)

…opening the packages on arrest. This is clearly not in dispute. I was drawn to a decision with which I am well familiar, the decision of R v Olbrich (1999) 199 CLR 210, and particularly, in the reference of the Crown, to pp 279‑280, regarding what is required to be proven by the Crown and what is required to be prov…

Legislation Cited

Commonwealth Migration Act 1958 (Cth)
1 mention (from Para 24)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 73)
Crimes Act 1914 (Cth)
1 mention (from Para 29)
Criminal Code Act 1995 (Cth)
1 mention (from Para 2)
Migration Act 1958 (Cth)
1 mention

Medium Neutral Citation:	R v Yu [2019] NSWDC 904
Hearing dates:	21 June 2019
Decision date:	01 August 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Convicted – sentenced to a term of imprisonment to be served by way of an Intensive Correction Order
Catchwords:	CRIME – Commonwealth - sentence – attempt to import commercial quantity border controlled precursor – not the intended recipient – took possession and control – intentional knowledge – recklessness – impulsive act – Chinese citizen – resident visa – no association with drugs or criminal activity – low risk of re-offending -
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth) (Crim Code) Migration Act 1958 (Cth)
Cases Cited:	Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208 HAT v R [2011] VSCA 427 Hili & Jones v R [2010] HCA 45 R v Chandler [2010] QCA 21 R v De La Rosa [2010] NSWCCA 194 R v El‑Haddad [2015] NSWCCA 10 R v Fowler [2003] NSWCCA 321 R v Holland [2011] NSWCCA 65 R v Hull [2016] NSWSC 634 R v Mobbs [2005] NSWCCA 371 R v Morabito (1992) 62 A Crim R 82 R v Napala [2018] NSWCCA 191 R v Olbrich (1999) 199 CLR 210 R v Tranter [2013] SASCFC 61 R v Webb [2004] NSWCCA 330 R v Xiao [2018] NSWCCA 4
Category:	Sentence
Parties:	Regina (Crown) Chengwei Yu (offender)
Representation:	Counsel: Mr Gleeson (DPP (Cth)) Ms McGee (offender) Solicitors:
File Number(s):	2016/00318774
Publication restriction:	No