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Yu v The Queen

Yu v The Queen

Case [2019] NSWCCA 96 10 May 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Yu v R [2019] NSWCCA 96
Hearing dates: 29 April 2019
Decision date: 10 May 2019
Before: Hoeben CJ at CL at [1];
Davies J at [62];
Fagan J at [63]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – one count of cultivating a prohibited plant greater than the applicable commercial quantity – whether factual findings open to the sentencing judge – whether finding of special circumstances should have been made – whether applicant’s deprived upbringing relevant – whether sentence was manifestly excessive – grounds of appeal not made out – leave to appeal granted but appeal dismissed.
Legislation Cited: Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW) – ss 23(2)(a), 25(1)
Cases Cited: AB v R [2014] NSWCCA 31
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
El-Afchal v R [2015] NSWCCA 112
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Majid v R [2010] NSWCCA 121
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Regina v Cramp [2004] NSWCCA 264
Regina v Fidow [2004] NSWCCA 172
R v M.A.K., R v M.S.K. [2006] NSWCCA 381, 167 A Crim R 159
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Sutton [2004] NSWCCA 225
R v Wong [2018] NSWCCA 20
Tak Fat Wong v The Queen [2001] HCA 64; 207 CLR 584
Trad v R [2009] NSWCCA 56
Windle v R [2011] NSWCCA 277
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Denh Cooc Yu – Applicant
Regina – Respondent Crown
Representation:
Counsel:
S Kluss – Applicant
E Balodis – Respondent Crown
Solicitors:
Ren Zhou Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2011/1277272015/381940
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 September 2017

Before:

Colefax SC DCJ

File Number(s):

2011/127727
2015/381940

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the Local Court to one count of cultivating a prohibited plant greater than the applicable commercial quantity pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). This offence has a maximum penalty of imprisonment for 15 years.

There were two matters taken into account on a Form 1:

Knowingly take part in cultivating a prohibited plant greater than the applicable commercial quantity, contrary to s 23(2)(a) of the DMTA.

Possessing for supply a quantity of cannabis, contrary to s 25(1) of the DMTA.

On 22 September 2017, his Honour Judge Colefax SC sentenced the applicant to a term of imprisonment of 4 years and 6 months, commencing…

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 The Queen

Details

AGLC: Yu v The Queen [2019] NSWCCA 96
Case: [2019] NSWCCA 96
Decision Date: 10 May 2019

CaseChat Overview and Summary

The case of Yu v The Queen involved the defendant, who was convicted of cultivating a prohibited plant in quantities exceeding the applicable commercial threshold. The dispute pertained to the sentence imposed by the sentencing judge, with the defendant appealing the severity of the punishment. The High Court of Australia was tasked with evaluating the appeal and determining whether the sentencing judge’s findings were correct and whether the sentence imposed was appropriate. The legal issues included whether the factual findings regarding the cultivation of the prohibited plant were open to the sentencing judge, whether special circumstances warranted a different sentence, and if the defendant’s deprived upbringing should have been considered in the sentencing process. Additionally, the court had to assess whether the sentence was manifestly excessive.

The High Court examined the sentencing judge’s findings and determined that they were not open to question, as they were supported by evidence. The court held that the sentencing judge was not required to find special circumstances because the evidence did not compel such a conclusion. Furthermore, the court found that the defendant’s deprived upbringing, while relevant, did not warrant a different sentence. The court also concluded that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offence committed. Consequently, the appeal was dismissed, although leave to appeal was granted.

The final orders of the court were to dismiss the appeal but grant leave to appeal, effectively affirming the original sentence imposed by the sentencing judge. The court emphasised that the sentence was appropriate given the nature and circumstances of the offence, and the defendant's background, while considered, did not alter the outcome. This decision underscores the importance of adhering to established legal principles in sentencing and the limited scope for appellate intervention in such matters.

Orders