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District Court 26 August 2022

R v Fu

[2022] NSWDC 381

DrugsFraud & dishonestyFirearms & weapons

Citation: R v Fu [2022] NSWDC 381
Court: District Court of New South Wales
Date: 26 August 2022
Judge: Scotting DCJ

Background

The offender, Baiqi Fu, appeared for sentencing after pleading guilty in the Local Court to two principal offences. The first was jointly importing a commercial quantity of border-controlled drugs between December 2020 and May 2021, a Commonwealth offence carrying a maximum penalty of life imprisonment. The second was possessing an unauthorised pistol, a state offence under the Firearms Act 1996 (NSW) carrying a maximum of 14 years imprisonment and a standard non-parole period of four years.

The offender also asked the court to take into account a further offence of dealing with money suspected to be proceeds of crime exceeding $100,000, dealt with on a schedule under s 16BA of the Crimes Act 1914 (Cth) when passing sentence for the importation offence.

The importation scheme involved eight consignments of border-controlled drugs, primarily ketamine and methamphetamine, dispatched from multiple countries including Canada, France, and the United Kingdom. The offender directed a co-offender, Donghao Li, in collecting and delivering packages, and was arrested on the street in Sydney waiting to receive a controlled delivery of a package containing approximately 2.97 kg of ketamine.

  • What sentence was appropriate for a Commonwealth commercial drug importation offence under the Criminal Code (Cth), applying the requirements of Part IB of the Crimes Act 1914 (Cth)?
  • What weight should be given to the guilty plea for both the Commonwealth and state offences, including the utilitarian value of that plea and whether it reflected genuine acceptance of responsibility?
  • What sentence was appropriate for the state firearms offence, taking into account the standard non-parole period as a legislative guidepost?
  • How should the sentences for the state and Commonwealth offences be structured to reflect the offender's overall criminality and the totality principle?

Decision

For the Commonwealth importation offence, Scotting DCJ applied the sentencing framework under Part IB of the Crimes Act 1914 (Cth), including the factors listed in s 16A(2). His Honour noted that the Crown case was strong and that the guilty plea, entered in the Local Court, had saved the need for witnesses at trial. The court was satisfied the plea reflected genuine acceptance of responsibility and a willingness to facilitate the course of justice, warranting a 25% discount.

The court identified the offender's role as an organiser and director within the importation network. He provided addresses for deliveries, directed co-offenders including Li, and was present to receive a controlled delivery of commercial quantities of ketamine. His role was assessed as significant, though he was not at the apex of the organisation.

On the firearms offence, the standard non-parole period of four years served as a legislative guidepost. The 25% guilty plea discount applied under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The court took into account several mitigating factors: the offender's relatively young age, prior good character, absence of prior convictions, difficult conditions of incarceration during the COVID-19 pandemic, and the emotional impact his imprisonment had on his mother. Full-time imprisonment was the only appropriate sentence, a concession the offender himself made and which the court confirmed was properly made.

Orders Made

  • State offence (unauthorised possession of pistol): term of imprisonment of 9 months with a non-parole period of 6 months, commencing 20 April 2021; non-parole period expiring 19 October 2021; head sentence expiring 19 January 2022.
  • Commonwealth offence (commercial drug importation): term of imprisonment of 6 years commencing 20 July 2021, expiring 19 July 2027; non-parole period of 3 years expiring 19 July 2024.
  • The offender's earliest eligibility for parole is 19 July 2024, subject to the Federal Attorney-General's determination.
  • The money laundering offence was taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth).

Key Takeaways

  • For Commonwealth drug importation offences, the sentencing court is required to apply the framework in Part IB of the Crimes Act 1914 (Cth), with the non-parole period representing the minimum period justice requires the offender to serve in custody, assessed by reference to High Court principles from Power, Deakin, and Bugmy.
  • A 25% guilty plea discount applied to both the state and Commonwealth offences, with the court finding the plea reflected genuine acceptance of responsibility; the strength of the Crown case remained a relevant consideration in assessing that willingness.
  • Under s 16A(2) of the Crimes Act 1914 (Cth), the list of relevant factors is not exhaustive, and common law sentencing principles continue to apply to Commonwealth offenders alongside the statutory criteria.
  • Mitigating factors, including prior good character, age, absence of prior convictions, and difficult prison conditions during the COVID-19 pandemic, were taken into account in arriving at the sentence, even where the objective seriousness of the offending was high.
  • The District Court had regard to sentences imposed on co-offenders Donghao Li and Mum Kit Lock for their respective roles in the same organisation, consistent with the principle that parity in sentencing is a relevant consideration.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.2A(1), 307.1(1), 311.4(1), 400.9(1)
- Crimes Act 1914 (Cth), ss 16A, 16BA, 17A
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D(2)(a)

Cases:
- Bugmy v The Queen (1990) 169 CLR 525
- Cameron v The Queen (2002) 209 CLR 339
- Danial v R [2008] NSWCCA 15
- Deakin v The Queen (1984) 58 ALJR 367
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- Power v The Queen (1974) 131 CLR 623
- R v El Karhani (1990) 21 NSWLR 370
- R v Nassir [2020] NSWCCA 88
- R v Nguyen (2010) 205 A Crim R 106
- R v Olbrich (1999) 199 CLR 270
- Xiao v R (2018) 96 NSWLR 1