Citation: R v Luo; R v Liu; R v Fan; R v Bayliss [2021] NSWSC 1500
Court: Supreme Court of New South Wales
Date: 19 November 2021
Judge(s): Hamill J
Background
Following a three-month jury trial in late 2020, three men (referred to here as Luo, Liu and Fan) were convicted of murdering one man and attempting to murder another at a Guildford residence that also served as a makeshift Buddhist temple. The shooting occurred on 1 February 2017. The intended target, a drug dealer, survived. An innocent bystander was killed.
A fourth man, Bayliss, was convicted of supplying one of the firearms used in the attack. During the same transaction in which he received the firearm, he supplied the other three offenders with methylamphetamine. Bayliss had a separate matter for supplying a prohibited drug before the court as well.
The sentencing proceedings were complicated by the acquittals of two co-accused (Al Batat and Nai An Li), contested facts about the nature and planning of the attack, significant concerns about witness credibility, and the need to impose sentences that were proportionate and consistent across multiple offenders with differing criminal histories.
Legal Issues
- What facts could be found proved to the criminal standard for sentencing purposes, given the jury acquittals of related charges and co-accused, and the poor quality of prosecution evidence?
- Whether the shootings constituted a contract killing, or arose from a more disorganised criminal enterprise rooted in a drug debt.
- How the standard non-parole period for murder (20 years) and shoot with intent to murder (10 years) should inform sentencing, applying the framework from Muldrock v The Queen.
- The objective seriousness of each offence and where it fell on the range.
- How aggravating and mitigating circumstances applied to each offender individually.
- How to structure cumulative and concurrent sentences across multiple offences and multiple offenders while maintaining totality, parity and proportionality.
- Whether special circumstances existed to justify varying the statutory ratio of non-parole period to total sentence.
Decision
Hamill J undertook detailed fact-finding before imposing sentence, noting the limited reliability of the prosecution's evidence. The principal witness was characterised as a self-serving fabricator with access to the police brief, and other prosecution witnesses were described as evasive and unfavourable. On the contested question of whether the shooting was a contract killing, the court was not satisfied to the requisite standard. Instead, the court found the episode had its origins in a drug debt and was a chaotic, poorly executed enterprise involving three firearms.
The court found the offending fell in the upper mid-range of objective seriousness. Three firearms were used, the shooting occurred in a suburban home, an innocent bystander was killed, and the offending was connected to a lifestyle involving organised drug supply and firearms. The court noted that the home also served as a Buddhist temple and that the proprietor, known as "Sifu," was a figure of some complexity, described as a Buddhist master and collector of fine wine. These circumstances heightened the objective gravity of the offending.
The court applied the Muldrock framework, treating the standard non-parole periods as legislative guideposts rather than mandatory benchmarks, and assessed each offender's culpability individually. Luo, Liu and Fan were each sentenced for murder, shoot with intent to murder, and supplying drugs, with Luo also sentenced for discharging a firearm at a dwelling. Bayliss was sentenced for supplying a firearm and supplying a prohibited drug. The court structured sentences with partial concurrence to reflect totality while still vindicating each offence.
The court declined to adopt a checklist approach to the aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, instead weighing them as part of a holistic assessment. Specific attention was given to each offender's criminal history, time spent in pre-sentence custody, existing sentences being served, and any relevant subjective circumstances including psychological and psychiatric material placed before the court.
Orders Made
No orders were made in this decision.
Key Takeaways
- Fact-finding at sentence is not constrained by the jury's verdicts on every count, but acquittals on related charges and the acquittal of a co-accused are matters the sentencing court must take into account when determining what facts are established to the criminal standard.
- Where the principal prosecution witness is found to be a self-serving fabricator with access to the police brief, the court will scrutinise the basis for any aggravating factual finding, such as contract killing, with particular care before acting on it.
- Under the Muldrock framework, standard non-parole periods serve as legislative guideposts rather than starting points or mandatory outcomes; the sentencing court must assess the whole of the circumstances from the beginning to the end of the process.
- Organised criminal activity involving the intersection of drug supply and firearms in residential settings carries high objective seriousness, and the death of an innocent bystander in that context will weigh heavily in the sentencing calculus.
- Parity, proportionality and totality require careful structuring of cumulative and concurrent sentences where multiple offenders are sentenced for overlapping but differently calibrated criminal conduct arising from the same episode.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93GA
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22A, 25D, 44, 47, 53A, 55(1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Evidence Act 1995 (NSW), ss 32, 38, 128, 136
- Firearms Act 1996 (NSW), s 51
Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397
- Droudis v R [2020] NSWCCA 322; (2020) 103 NSWLR 806
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Andary v R [2020] NSWCCA 75
- Khudadadi v R [2021] NSWCCA 259
- Milat v R; Klein v R [2014] NSWCCA 29
- Mansour v R [2011] NSWCCA 28; (2011) 209 A Crim R 275
- Jonson v R [2016] NSWCCA 286; (2016) 263 A Crim R 268
- Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353
- Hamze v R [2006] NSWCCA 36
- Ghamraoui v R [2009] NSWCCA 111
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 266 FLR 464
- KR v R [2012] NSWCCA 32
- R v Al Batat & Ors (Nos 1, 2, 14, 25, 28) [2020] NSWSC