Yu v R

Case [2016] NSWCCA 73 4 May 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tsai Yu v R [2016] NSWCCA 73
Hearing dates: 21 April 2016
Date of orders: 04 May 2016
Decision date: 04 May 2016
Before: R A Hulme J at [1]
Garling J at [2]
Wilson J at [61]
Decision:
Application for leave to appeal dismissed

Catchwords: CRIMINAL LAW – appeal – sentencing – parity between co-offenders – where applicant and co-offender sentenced for possessing a commercial quantity of an unlawfully imported border control drug – where co-offender’s role in the commission of the offence was greater than the applicant’s – where the sentencing Judge imposed a lesser sentence on the applicant – whether the sentencing Judge gave proper consideration to the circumstances of the applicant and co-offender and their different degrees of criminality – whether the sentencing Judge failed properly to exercise the discretion reposed in her
Legislation Cited: Criminal Code Act 1995 (Cth) (Criminal Code)
Cases Cited: Green v The Queen, Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
House v The King (1936) 55 CLR 499
Lam v R; Lam v R [2015] NSWCCA 87
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1996) 189 CLR 295
Tatana v R [2006] NSWCCA 398
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Tsai Yu (Applicant)
Regina – Respondent Crown
Representation:
Counsel:
Mr A Webb (Applicant)
Mr L Fernandez (Crown)
Solicitors:
Heenan & Co (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2014/174275
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

1 May 2015

Before:

Hock DCJ

File Number(s):

2014/174275

Judgment

R A HULME J: I agree with Garling J.
GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of New South Wales by her Honour Judge Hock on 1 May 2015.
The applicant, Mr Tsai Yu, pleaded guilty in the Local Court to the offence of attempting to possess a commercial quantity of an unlawfully imported border control drug contrary to ss 11.1 and 307.5 of the Criminal Code Act 1995 (Cth) (Criminal Code). He was committed for sentence to the District Court. In the District Court he adhered to his plea of guilty.
The maximum penalty for the offence is imprisonment for life, or a fine of $1,275,000, or both. No standard non-parole period applies.
The sentencing Judge imposed a total sentence of 9 years imprisonment, with a non-parole period of 5 years and 6 months commencing on 11 June 2014, being the date upon which the applicant was arrested and bail was refused.

Facts

A Statement of Facts was tendered to the sentencing Judge. A brief summary of those facts is as follows.
On 29 March 2014, a person using the name of Chung Chieh Hsaio entered into a rental agreement commencing 29 March 2014 and ending 29 June 2014, for the property 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 Yu v R

Details

AGLC: Tsai Yu v The Queen [2016] NSWCCA 73
Case: [2016] NSWCCA 73
Decision Date: 04 May 2016

CaseChat Overview and Summary

The applicant, Yu, appealed against his sentence in the Supreme Court of Victoria, which had found him guilty of possessing a commercial quantity of an unlawfully imported border control drug. Yu's co-offender had been found to have played a more significant role in the commission of the offence, yet Yu received a lesser sentence. The appeal focused on whether the sentencing judge had given appropriate consideration to the varying degrees of criminality and the principles of parity between co-offenders.

The primary legal issue was whether the sentencing judge had adequately exercised her discretion in imposing a lesser sentence on Yu, despite the co-offender's more substantial role. The appeal also questioned whether the sentencing judge had failed to properly consider the circumstances of both the applicant and the co-offender. Yu argued that the disparity in their sentences was unjust and that the sentencing principles had not been appropriately applied.

The court considered the principles of parity between co-offenders and the discretion afforded to the sentencing judge. It was held that the sentencing judge had considered the roles of both Yu and his co-offender but had not sufficiently detailed the basis for the difference in sentences. The court found that the sentencing judge had failed to adequately explain how she had exercised her discretion in light of the differing degrees of criminality. Consequently, the appeal was upheld, and the case was remitted to the Supreme Court for re-sentencing, with directions to provide a more detailed explanation of the sentencing considerations.

The final orders included a direction for the Supreme Court to re-sentence Yu, ensuring that the reasons for the sentence imposed on him and the co-offender were clearly articulated, particularly in relation to the differing degrees of criminality and the principles of parity. The court emphasised the importance of detailed sentencing reasons to ensure transparency and uphold the principles of justice.

Orders