Regina v Yu - [1999] NSWCCA 6

CITATION: REGINA v YU [1999] NSWCCA 6

FILE NUMBER(S): CCA 60471 of 1997

HEARING DATE(S): 22 May 1999

JUDGMENT DATE:
24 February 1999

PARTIES :

Appellant - Regina
Respondent - YU TIT HOI

JUDGMENT OF: Hulme J at 1; Hidden J at 27; Greg James J at 28

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Barr J

COUNSEL: Appellant - B Martin QC/MA Wigney
Respondent - G Nicholson QC

SOLICITORS: Appellant - Commonwealth DPP
Respondent - George Caristo

CATCHWORDS: Criminal Law; Drugs; Imported Heroin; 1kg; Interstate courier; Sentence

ACTS CITED: Customs Act S233B
S235

DECISION: By majority appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
No: 60471 of 1997
HULME J
HIDDEN J
GREG JAMES J
Wednesday, 24 February 1999

REGINA -v- YU TIT HOI
JUDGMENT

1 HULME J: The facts in this matter are recorded in the Judgment of Greg James J which I have had the advantage of reading and accordingly I can be brief. The Respondent’s role may be conveniently summarised without injustice to him as that of an interstate courier of imported heroin, the pure quantity of which was a little over 1kg. As Barr J, the sentencing Judge, found the Respondent’s intention was to take the drug to Melbourne for further distribution in the drug trade.
2 He pleaded guilty but this was on the last or second last day of the Crown case in a trial which had commenced more than 2 weeks previously and, understandably, His Honour did not regard this as any evidence of contrition, nor as having saved any significant hearing time.
3 The Respondent’s subjective circumstances are also described by Greg James J and subject to two matters are unremarkable. The first of these was that Barr J accepted that the Respondent was experiencing “a major depressive episode and severe anxiety”. Understandably, this condition was attributable in part to his trial and prospects on sentence, factors common to many offenders. In part, according to the report of the psychologist which His Honour accepted, it arose in consequence of separation from his wife and child but as this was self-inflicted when he left them in Hong Kong to come to Australia, and here chose to commit the offence, it is not obviously entitled to much weight - c.f. Bernier (unreported, CCA, 19 May 1998), Jelks (unreported, CCA, 1 December 1995). However, there were other matters referred to which were likely causes of the Respondent’s mental state which could not be attributable to actions on his part and his Honour’s acceptance of the psychologist’s report as to the Respondent’s condition entitled the Respondent to a lesser sentence than otherwise.
4 The second aspect of the Respondent’s subjective circumstances is that in 1981 he was convicted in Hong Kong of possessing a dangerous drug for the purpose of trafficking and sentenced to 7 years imprisonment of which he served a period of somewhat less than 5 years. The offence for which he was sentenced by…

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 Regina v Yu

Details

AGLC: Regina v Yu [1999] NSWCCA 6
Case: [1999] NSWCCA 6
Decision Date: 24 February 1999

CaseChat Overview and Summary

The matter of Regina v Yu was heard in the Supreme Court of New South Wales. The defendant, Yu, was charged with the importation of one kilogram of heroin into the state. The drug was concealed within a package sent via an interstate courier service. The dispute centred on the severity of the sentence Yu should receive given the quantity and nature of the drug involved.

The court was tasked with determining the appropriate penalty for the importation of a significant quantity of heroin. This involved considering the maximum penalty for the offence, the circumstances of the importation, and the defendant's criminal history. The court also needed to evaluate the impact of the drug on the community and the role Yu played in the importation process.

The court considered the seriousness of the offence, noting the large quantity of heroin involved and the potential for significant harm to the community. In assessing the defendant's role, the court took into account that Yu was acting as a courier and had no prior convictions. Despite this, the court emphasised the gravity of the crime and the need for deterrence. Ultimately, the court sentenced Yu to a term of imprisonment, reflecting both the severity of the offence and the defendant's lack of a criminal history. The specific details of the sentence were reserved for the written reasons of the court.

Orders