R v Luo; R v Liu; R v Fan; R v Bayliss

SWSC 1388 R v Al Batat & Ors (No 28) [2020] NSWSC 1452 R v Bayliss [2020] NSWDC 769 R v Feroz and Ors [2021] NSWSC 341 R v Feroz; R v Ho; R v Hoang; R v Nguyen; R v Trinh [2020] NSWSC 341 R v Henry and Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 R v Price [2005] NSWCCA 285 R v Primmer [2020] NSWCCA 50 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Spinks [2021] NSWSC 649 R v Sumpton (No. 4) [2015] NSWSC 684 RPS v R [2000] HCA 3; 199 CLR 620 Tabbah v R [2019] NSWCCA 324 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383 Veen v the Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Regina Ying Cheng Luo Jaiyu Liu Ian Fan Jacob Blake Bayliss Representation: Counsel: P Hogan (Crown) R Webb (Luo) T Quilter (Fan) N Carroll (Liu) A Norrie (Bayliss)

Solicitors: Office of the Director of Public Prosecutions (Regina) Voros Lawyers (Luo) Zahr & Partners (Fan) George Sten & Co (Liu) Ross Hill Lawyers (Bayliss) File Number(s): 2017/170943; 2018/380808; 2017/168476; 2017/168582; 2017/321618 Publication restriction: Nil

Judgment

1. The four offenders stand for sentence today because of their involvement, in various ways, in a series of criminal enterprises involving drugs and guns that culminated in the murder of one man and the attempted murder of another. The men stood trial together from November to December last year, along with two others - Abdallah Hassan Al Batat and Nai An Li - each of whom was acquitted of the charges they faced.

The proceedings and the offences for which each offender is to be sentenced

The trial

1. At the conclusion of a three-month trial, Ying Cheng Luo, Jaiyu Liu and Ian Fan were found guilty of the murder of Qin Wu (count 4) and the attempted murder of Jun Jia (count 5). These offences were committed on 1 February 2017 in the Guildford home - and sometime Buddhist Temple - of Jian Feng Weng (known as "Sifu" or "Master"). The same jury acquitted both Mr Luo and Mr Al Batat of one count of shooting at Mr Jia with intent to murder him (count 1), an offence allegedly committed in the late afternoon of 23 January 2017 at Bexley Road in Earlwood. Mr Al Batat was also found not guilty of the murder and attempted murder on 1 February 2017 (counts 4 and 5).
2. Mr Bayliss was found guilty of one count of supplying a firearm (count 2) but not guilty of a second count of supplying a firearm (count 3). These offences were part of the same transaction on 1 February 2017 and involved the alleged supply of the firearms to Messrs Luo, Liu and Fan. During the same meeting, the latter three offenders supplied Mr Bayliss with a quantity of methylamphetamine.
3. A sixth accused man, Nai An Li, was found not guilty of being an accessory after the fact to the murder and attempted murder (count 6).
4. Both Mr Al Batat and Mr Li were discharged and released upon the return of the verdicts and played no part in the complicated sentencing proceedings that followed.

Other indictments, offences and guilty pleas

1. The original indictment contained 9 counts. This was not the 6 count indictment presented before the jury panel at the commencement of the trial and from which the count numbers referred to above derive. The original indictment included a count (then count 2) against Mr Luo alleging that he discharged a firearm at a house in Willoughby on 30 January 2017 (s 93GA of the Crimes Act 1900 (NSW)). That count was severed from the indictment. [1] After the trial, the prosecution presented an indictment containing that single count and Mr Luo entered a plea of guilty at the commencement of the sentencing hearing.
2. The original indictment contained a count against Messrs Luo, Liu and Fan alleging that they supplied drugs to Mr Bayliss on 1 February 2017 (then count 5). The three offenders pleaded guilty to that offence before the jury was empanelled and the count was removed from the indictment.
3. Mr Bayliss also pleaded guilty to one count of supplying a prohibited drug in the Local Court on 2 February 2017. That matter is also before me for sentence.

Offences, relevant statutory penalties, pre-sentence custody and pre-existing unrelated sentences [2]

Mr Luo

1. Mr Luo is to be sentenced for murder, shoot with intent to murder, firing a gun at a dwelling house, and supplying drugs. He was charged with the murder on 7 June 2017 at which time he was in custody for unrelated offences. He was serving a sentence for recklessly inflict grievous bodily harm until 8 November 2018 which was imposed by the District Court. He is currently in custody serving another sentence for supplying a large commercial quantity of drugs. His existing non-parole period is due to expire on 7 May 2025.

Mr Liu

1. Mr Liu is to be sentenced for murder, shoot with intent to murder and supplying drugs. He was charged with murder on 5 June 2017 at which time he was in custody (from 8 February 2017 until 22 March 2018) for unrelated matters. He has been in custody, solely as a result of the present charges, since 22 March 2018.

Mr Fan

1. Mr Fan is to be sentenced for murder, shoot with intent to murder and supplying drugs. He has been in custody since 5 June 2017 when he was arrested and charged for the murder and attempted murder. This period of incarceration is solely referable to the offences for which he is to be sentenced.

Mr Bayliss

1. Mr Bayliss is to be sentenced for supplying a firearm and supplying drugs. He has been in custody for unrelated matters at all relevant times. He was in custody for firearms offences from 14 February 2017 until 13 August 2018. He was then sentenced in the District Court for a specially aggravated enter dwelling with intent to rob and reckless wounding and received a sentence including a non-parole period that will expire on 13 August 2023.

Maximum penalties and standard non-parole periods

1. The maximum penalties and standard non-parole periods applicable to the offences for which the offenders are to be sentenced are as follows: 1. Murder carries a maximum penalty of life imprisonment and there is a standard non-parole period of 20 years. These statutory maximums and guideposts apply to offences for which Messrs Luo, Liu and Fan are to be sentenced. 2. Shoot with intent to murder carries a maximum penalty of 25 years and a standard non-parole period of 10 years. These penalties also apply to Messrs Luo, Liu and Fan. 3. Supplying drugs carries a maximum penalty of 15 years. This maximum penalty applies to all four offenders. There is no standard non-parole period. 4. Supplying a firearm carries a maximum penalty of 5 years and there is no standard non-parole period. This penalty applies only to Mr Bayliss. 5. The maximum penalties indicate the relative seriousness of the offences. The maximum penalty is a critical matter to be borne in mind from the beginning to the end of the sentencing process. Murder is the most serious offence known to the law and this is reflected in the maximum penalty of life imprisonment.
2. The standard non-parole period for an offence applies to an offence in the mid-range of objective seriousness. Subject to an amendment to the relevant provision, the High Court explained in Muldrock v The Queen the correct approach to be taken to sentencing for an offence that has an applicable standard non-parole period. [3]

The impact of this organised criminal activity on its victims and the community

1. I am required to make findings concerning the facts upon which each of the four men is to be sentenced. This is a complicated task because of the competing versions contended for by the parties, the substantial questions over the credibility of the prosecution witnesses, and the quality of the evidence. However, there are two matters of fact which cannot be disputed. First, these four offenders were involved in serious, planned and organised criminal activity. The extent to which this aggravates the offending varies but it is a relevant matter in every instance. Second, the devastating impact of the offending on the victims, their relatives and on the community more generally. It is that to which I will first refer because, like the maximum penalties, it is a matter that a sentencing Judge must never lose sight of when undertaking the task of determining an appropriate punishment for an individual offender.

Impact on the community and deterrence

1. The negative impact of organised crime, including the distribution of guns and methylamphetamine, on the fabric of the community cannot be underestimated. The penalties for offences involving guns and drugs reflect the seriousness with which Parliament has determined the courts must treat offenders who are involved in this type of crime. When members of the community hear of shootings in suburban homes, it undermines their sense of security and safety.
2. Crimes, such as those with which the Court is here concerned, must be met with stern punishment. The law requires sentences in cases such as these to protect the community and prevent crime by sending a message that such wanton and lawless conduct will not be tolerated and that those who are caught and convicted can expect to lose their fundamental right to liberty for a lengthy period.

Impact on the victims

1. Apart from the attack on the fabric of society, the law requires sentencing to vindicate the dignity of the individual victims and for the punishment to recognise the harm done to the victims and their families.
2. Mr Qin was essentially an innocent bystander caught up in what I am satisfied was a shooting that had its genesis in a dispute about drugs and money. He was in the wrong place at the wrong time. Now, he is dead.
3. His father (Weifu Wu) provided a statement explaining the impact of his son's death. I thank him for his statement that provides some insight into his family's grief. He and the family have my deepest sympathy although no sentence I impose and no words I construct can provide any real comfort. Weifu Wu said when his relatives learned of Qin Wu's death from the Police, "everyone in the family was devastated and abandoned ourselves to inconsolable grief." Qin Wu's mother suffered from intermittent psychosis in the months that followed. She would go into Qin Wu's room and "cry out his name over and over again". Mr Wu recounts "losing [his] own head", sleepless nights due to the "mental torture" and a "soreness and indignation" in his heart. He said Qin Wu was a hardworking and selfless man, who was the primary provider for his family and parents. His death has had a severe financial impact on the family. Weifu returned to China to help Qin Wu's wife care for their three young children. She was a full-time house-wife but has been forced to find work to maintain the family income far-away from home.
4. There has been a significant impact on Qin Wu's young children. They have lost their father forever and their mother now spends extended periods of time away from the children in order to provide for them. Weifu says that "the children live in a lonely family without parental guidance or love".
5. Devastating impacts on family and loved ones is the almost inevitable result of any crime in which life is taken. This is why homicide is treated as the most serious of crimes.

An overview of the facts and evidence and an outline of the position taken by the parties on sentence

1. The facts upon which the offenders are to be sentenced must not be inconsistent with the verdicts of the jury. However, the verdicts are capable of explanation on several bases and I am required to find the facts based on the evidence I accept, provided those findings are able to be reconciled with the verdicts. Aggravating circumstances must be established beyond reasonable doubt while mitigating factors are to be established on the balance of probabilities. Sometimes the evidence does not allow a sentencing Judge to make relevant factual findings because the Court may have: "only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence." [4]
2. Sometimes that is so because the evidence is silent and only the accused person knows the complete background to the offending. In other cases - and this is one of them - the accused's silence is accompanied by the fact that the evidentiary sources of the prosecution case are unreliable, or important witnesses were not called, and the evidence before the court is inconsistent and unsatisfactory.
3. The parties in the present case took diametrically opposed positions on a central issue in the murder case.

The prosecution case on sentence

1. The Prosecution submits that this was a contract killing that went wrong. It submits that Mr Luo accepted a contract from two serious drug dealers (James Chen and Jackie Chau) to kill Jun Jia because he owed them a large sum of money for drugs. The case at trial was that Mr Al Batat, at the behest of Mr Luo, attempted to shoot and kill Mr Jia on 23 January 2017 in Earlwood but this attempt failed. There was a further attempt on Mr Jia's life at Sifu's Temple on 1 February. The prosecution case was that Mr Al Batat was at the Temple and notified Mr Luo that Mr Jia was present. Messrs Luo, Liu and Fan, along with Mr Luo's partner, Leonard Rivers, [5] travelled to Guildford in two cars. Initially, Mr Luo and Mr Liu entered the Temple and Mr Wu was shot and killed when Mr Liu discharged his weapon intending to kill Mr Jia. Mr Jia made his escape by the time Messrs Luo, Liu and Fan returned. All three were armed with guns. The prosecution case was one of joint criminal enterprise - that is that all three (along with Mr Al Batat) entered an agreement to kill Mr Jia. It put the case on an alternative basis asserting an extended joint criminal enterprise. This alternative case asserted that the men attended the Temple to intimidate the occupants and were armed with loaded guns. Mr Liu discharged the firearm with intent to kill or inflict grievous bodily harm. The other men were criminally liable because what eventuated was within their contemplation when they agreed to participate in the criminal enterprise to enter the Temple armed and with the intention of intimidating those inside.
2. There are two significant, although not insurmountable, obstacles in the way of the prosecution establishing (beyond reasonable doubt) its primary theory of a contract killing. The first concerns the implications of Mr Al Batat's acquittal on all of the counts he faced. While there were some differences in the evidence admissible against the three men, those differences do not explain the clear rejection (in the sense that the jury were not satisfied to the criminal standard) of the prosecution case against Mr Al Batat. The second obstacle concerns the quality of the evidence of some of the witnesses called by the prosecution to prove its case. In particular, to establish a contract killing, heavy reliance was placed on the evidence of Leonard Rivers, a witness who was both criminally concerned in the events and who gained substantial rewards for his cooperation with the police and for giving evidence in the trial.

The offenders' case(s) on sentence

1. The three offenders who were found guilty of murder and shoot with intent to murder, each of whom was separately represented, took slightly different approaches to the factual basis upon which they should be sentenced. As with Mr Al Batat, there were different bodies of evidence against the three murderers and some of these were of significance. However, the bulk of the evidence was common to each of the offenders and there were significant common threads throughout the submissions made on sentence.
2. Each offender submitted that the prosecution had failed to establish that this was a contract killing. Messrs Luo and Fan, at least implicitly, invited the Court to proceed on the basis of the prosecution's alternative case, namely that their liability arose on the basis of extended joint criminal enterprise. Mr Liu, who discharged the weapon that killed Mr Wu, is to be sentenced as a principal although the nature and existence of any joint criminal enterprise is relevant to an assessment of the seriousness of the offence.
3. All three offenders disputed that Mr Liu acted with an intention to kill.

The issues to be determined in a nutshell

1. While the verdicts of the jury resolved the fundamental issues between the prosecution and the accused, the sentencing proceedings were occupied largely by several outstanding factual disputes between the parties. As the foregoing analysis demonstrates, the parties took robust and irreconcilable positions on several issues. The more significant factual issues for determination are: 1. Whether the prosecution established that the offenders should be sentenced on the basis that they carried out the murder and shoot with intent to murder as part of a contract to kill Jun Jia. 2. The nature and extent of the joint criminal enterprise which resulted in the shooting. 3. The specific intention with which each of the offenders, and particularly Mr Liu, acted. 4. The number of weapons used and who was armed at the time the offenders entered the Temple. 5. The circumstances that led to the killing including the relationships between the parties and the nature of the drug dealing in which Jun Jia, the offenders and others were involved.

Relationships, drug dealing, the key players and critical witnesses

1. To untangle the complex factual matrix which played out between January and early February, and in relation to which evidence was given in the course of the lengthy trial, it is as well to start with an understanding of the relationships between the key players and witnesses and to make some general findings as to the credibility of the key witnesses.

Jun Jia's association with the offenders

1. Mr Jia gave unchallenged evidence of his associations with Messrs Luo, Liu and Fan.
2. He said he met Mr Fan at a brothel operated by Mr Fan's wife (Lucy) in George Street, Burwood. He said he was initially a patron of the brothel but later became friends with Lucy and he and Mr Wu "helped" at the brothel by "redoing the bathrooms". He said Lucy introduced him to smoking "Ice". Mr Jia said he met Mr Fan (who he and others called "Michael") one or two months after he first visited the brothel. He was aware of some trips Mr Fan had to China and later spent time with him because Mr Fan "did not have any other friends". Mr Fan's girlfriend (Maggie Hsu) gave evidence that Michael told her that Mr Jia was working at the brothel.
3. He said he met Mr Liu (who he called "Corey") "between the end of 2012 and the beginning of 2013". He allowed Mr Liu to live at his unoccupied apartment in Clarence Street when Mr Liu had nowhere else to live. It was put to Mr Jia in cross-examination that he "knew Jaiyu [Liu] for a number of years by 2017" and he agreed with that proposition. He said he recognised Mr Liu when the offenders arrived at the Temple with Mr Luo on 1 February 2017.
4. Mr Jia said he had been to the Temple on five or six occasions and is where he met a person referred to as "the gay guy". This was a reference to Mr Luo. He said he met "the gay guy" once and that he recognised him when he entered the Temple on 1 February 2017. There was no challenge to Mr Jia as to his knowledge of Mr Luo although counsel referred to him as "the third man" or "male 3" or similar throughout the cross-examination. There was no dispute that Mr Luo was present at the time of the shooting.

James and Jackie

1. On the prosecution case, Jia Chen ("James") and Kwok Chun Chau ("Jackie") were central figures in the events that unfolded. They sold drugs to Jun Jia who failed to pay for them. This led to the pair offering a contract to kill Mr Jia which was accepted by Mr Luo. A number of witnesses called at the trial referred to the drug dealing and other activities undertaken by James and Jackie. Police witnesses confirmed the existence of the pair and knew where they lived. At one stage during the trial, James was present outside the court complex and interacted with Jun Jia during the course of his evidence. [6] Neither James nor Jackie has been charged with any offence arising out of the drug dealing or the alleged murder plot.
2. Neither James nor Jackie were called to give evidence at the trial. The jury was directed that this was a matter to be considered in determining whether the case against the offenders was established beyond reasonable doubt. [7] The same principle or logic applies in my determination of the facts on sentence. In particular, where the Prosecutor contends for a finding that would aggravate the criminality or increase an otherwise appropriate sentence, and where that matter must be established beyond reasonable doubt, I am entitled to (and should) take into account the fact that I have heard no evidence from witnesses who might have expected to have some knowledge of relevant events. I must not speculate on what they would have said if they had been called. As I understand, neither James nor Jackie has ever been charged and I am unaware of what investigations have taken place into their involvement.

Drug use and drug supply

1. There was a considerable amount of evidence at the trial, and then in the sentencing hearing, about the use and supply of drugs by a number of the accused and witnesses. This included:

• The involvement of James and Jackie in the supply of drugs and their relationship with Jun Jia and others in this enterprise.
• The related drug dealing activities of Jun Jia, Wai Li, David Boikov and Ada Chan.
• The acquisition of methylamphetamine by Ada Chan and other sex workers for use in the course of their employment at a "brothel house" (to adopt the quaint language of counsel for Mr Luo).
• The importation and distribution of cocaine by Leonard Rivers.
• Mr Luo and Rivers obtaining "cheap, high quality" heroin from Mr Li and smoking heroin at Mr Li's house. The evidence established that Mr Li was addicted to heroin at the relevant time.
• The supply of methylamphetamine by Mr Luo and evidence deriving from Rivers but not disputed in the cross-examination on behalf of Mr Luo.
• The supply of methylamphetamine to Mr Bayliss by Messrs Luo, Liu and Fan on 1 February 2017. The witness Martina Sellers (a pseudonym) gave evidence of the supply and use of drugs in Mr Liu's apartment at around the time Mr Bayliss supplied the gun (or guns) to Messrs Luo, Liu and Fan.
• The use of methylamphetamine by Jun Jia at the brothel in Burwood operated by Mr Fan's wife.
• Mr Liu's use of methylamphetamine on the day of the murder (evidence that was given by Wai Li and relied on by Liu to militate against a finding of an intention to kill).
• The daily use of drugs by Maggie Hsu, Mr Fan's girlfriend at the relevant time.
• The use of Ice at the Temple and Mr Jia's concession that he took Ice with him to the Temple on 1 February 2017 and "gave it to Da Feng [Sifu]".

1. The evidence demonstrated that many of the witnesses and the offenders themselves were drug users and some of the principal players were involved in substantial drug trafficking. This gives rise, in the case of the witnesses, to issues concerning their credibility in the sense of their reliability, accuracy and honesty. The evidence must be considered in that context and considerable caution must be adopted in making findings of fact, especially where those findings are adverse to the offenders.

The drug deal between James, Jackie, Jun Jia and others

1. The prosecution adduced detailed, at times befuddling, evidence concerning the sale of drugs from James Chen to Jun Jia.
2. There was no dispute that Mr Jia was involved in drug dealing with James and Jackie in late 2016 to early 2017. However, the details and magnitude of that dealing was disputed, as was its alleged connection to the shooting(s). The evidence was elicited from the witnesses Jun Jia, Wai Li, Brian Mao, Ada Chan, Leonard Rivers and, by way of hearsay or admission, by Mr Luo. James and Jackie were not called to give evidence.
3. Mr Jia said he was contacted by James in the second half of 2016 about a shipment of 5kg of methylamphetamine ("Ice" or "crystal meth") expected to arrive in Australia. [8] James asked Mr Jia if he would help him sell the drugs once it arrived. Towards the end of 2016, James called Mr Jia and arranged to meet at a footbridge in Turella. At that meeting, James said the drugs had arrived and gave Mr Jia a small cigarette lighter containing a sample of the drugs. [9]
4. Brian Mao gave evidence that Jackie asked him to do a "favour" for $10,000, [10] and that on 6 January 2017, he collected a safe from a shipping company. A warehouse release authority was tendered as Exhibit S. Mao stored the safe in a shed at his home until James came to inspect it. The safe contained a false bottom which James peeled off to reveal a large "like vacuum bag, with what [Mao] assumed was crystal meth". Mao said he later ascertained that the substance weighed about 4.9 kilograms. [11]
5. Mao then made a series of deliveries for James and Jackie. The details were a little vague but I accept that there were at least two deliveries involving Mr Jia. The first of those deliveries was made to a BP service station and involved half to one kilogram of the drug. The second delivery of one kilogram was made to the Garden Lodge Motel in Haberfield. Mr Mao was met by James in the parking lot of the motel and passed him the package containing the drugs. [12] James then delivered the drugs to Mr Jia. [13] A tax invoice (Exhibit A) showed that Mr Jia booked a room at the Garden Lodge Motel from the 8th to the 11th of January 2017.
6. At some stage during that period, Mr Jia met with Ada Chan, Wai Li and her partner, David Boikov, in his motel room and exchanged about 1kg of Ice for $96,000 cash. Ms Li provided $70,000 cash. The prosecution case was that Ms Chan lent Ms Li the shortfall and gave the balance of the cash to Mr Jia. Ms Li and Mr Jia gave evidence to that effect and said that the transaction was facilitated by Ada Chan. [14]

The alleged drug debt

1. The evidence of what happened to the cash that Jun Jia obtained as a result of the drug deals at the Garden Lodge Motel is confusing and dependent to a significant degree on Mr Jia's word. He said he placed the $90,000 cash in a "drawer" under the driver's seat of his Porsche motor car and then drove to an address in Turella where he left the car in the garage. He said he took out $10,000 and went to the casino. He gave some of the money to Qin Wu's brother. It was not clear from his evidence in chief what he did with the rest of the money.
2. Mr Jia gave various accounts in cross-examination. With some ingenuity, it may be possible to reconcile these accounts. He told Senior Counsel for Mr Al Batat that he did not pay for the Ice he received from James and Jackie at a BP service station in Hornsby and that he "cheated" "Ada or Bebe" out of money for the deals he did at the Garden Lodge Motel on Parramatta Road. [19] He claimed he had taken $50,000 from the Porsche on 23 January 2017 and this was the proceeds of drug dealing. He said he intended to take the money to the casino to gamble. [20] It is not clear what happened to this $50,000. In cross-examination by counsel for Mr Luo, it was put to Mr Jia that there was no drug debt relating "to money not accounted for for 1 kilogram of Ice". [21] Mr Jia denied this proposition and did so again when it was put to him by counsel for Mr Liu. [22] However, he agreed that he had given money to James who was waiting downstairs at the Ashfield Hotel but said this was on the "first day", not on the third day when he left the hotel with $90,000 in the Porsche. [23] He said: "I had to deal the dealings with James. On the first day in the same place and on the third day in the exact same place. Same place. And from that place, lastly, I departed with the money." [24]
3. He denied that the provision of money to James was "the truth just [slipping] out" or that he had "told so many lies you can't remember what is the truth and what's not?" [25]
4. Adding to the confusion about the fate of the money paid to Mr Jia by Ada Chan and/or Wai Li was the evidence of Wai Li who said she saw Jia and James meet downstairs at the hotel as she left with the Ice in order to "rush to sell it". [26] In cross-examination, she said she saw Jun Jia pass a bag to James and she was not sure whether "it holds money or things". [27] In re-examination (over objection, and by way of cross-examination with the grant of leave), she appeared to retreat from the evidence that Jia gave James a bag and said that she "only saw him entering the car" and that Jia was "carrying a bag". [28] The Prosecutor put to Ms Li that she was "deliberately trying to assist Mr Luo by giving false evidence" and this accusation appeared to relate to the evidence that Jia got into James' car. Counsel for Mr Luo was permitted to continue to cross-examine in light of the evidence elicited in re-examination. Ms Li confirmed seeing Jun Jia meet with James after the drug dealing in the motel room and that he had got into James' car carrying a bag. She denied the proposition that she was trying to help Mr Luo. She said "I'm only telling what I know" and agreed that much of the evidence in her statement was not "particularly great for Mr Luo". [29]

The alleged shooting on 23 January 2017

1. Jun Jia gave evidence that on 23 January 2017 he was driving along Bexley Road in the passenger seat of a Black Honda CR-V with his friend, Stephen Shu, when suddenly the back window smashed. Both Mr Shu and Mr Jia said they saw a man in a Toyota Camry holding a silver handgun. They each provided a description of the man. The prosecution case was that the shooter was Mr Al Batat, that he discharged the weapon with intent to kill Jun Jia, and that he did this at the behest of Mr Luo, who had accepted a contract to kill Mr Jia. This shooting was the subject of count 1 in relation to which both Mr Al Batat and Mr Luo were found not guilty.
2. The prosecution relied on the evidence of Messrs Jia and Shu that this shooting occurred. Mr Jia did not report the shooting to police because he was "nervous" and he said: "At that time many people saw that incident. I believe there must be somebody who would have reported to the police." [35]
3. However, in cross-examination he seemed to contradict himself by denying that the shooting occurred during "reasonably busy peak hour type traffic". [36]
4. In any event, neither Mr Jia nor Mr Shu told the police that they had been subject to a shooting on Burwood Road at any time immediately proximate to the event. Police found no evidence that any member of the public had reported such a shooting. Furthermore, despite inquiries with repairers nominated by Mr Shu, police investigators uncovered no evidence to support the assertion that the damage to the car was repaired.
5. It was on the back of this peculiar absence of independent, supporting evidence that both Mr Al Batat and Mr Luo put to the jury that it could not be satisfied that the 23 January shooting occurred at all. Defence counsel also relied on the fact that Mr Jia did not report this alleged shooting incident to police when he was spoken to about the 1 February shooting at the Temple.
6. The prosecution also relied on evidence given by Leonard Rivers of conversations he claimed to have heard between Mr Luo and (by inference) Mr Al Batat. He claimed that Mr Luo received a phone call at about 8 o'clock on the night of the shooting where Mr Luo asked "You got him?" and then said "sick cunt". After Mr Luo got off the 'phone he told Mr Rivers that "he got him". About 15 minutes later Mr Al Batat arrived at the apartment and went into Mr Fan's room. [37] Rivers had given evidence that a small handgun was stored in Mr Fan's room. Rivers said that he, Mr Luo and Mr Al Batat then "torched" the Toyota Camry used in the shooting. There was independent evidence of a Camry being burned in the area described by Rivers; the car was located there and a canvass of the area uncovered a neighbour who took a video of the car burning. [38] The car's details matched that of a car sold by a Mr Zakaria (who had since died) to an "Asian" man some time earlier.

The shooting at Willoughby on 29 January 2017

1. The next incident in the sequence of events relates only to Mr Luo. It concerns an incident on 29 January 2017 when he discharged a firearm at the dwelling of Ada Chan. This was the offence under s 93GA(1) of the Crimes Act 1900 that was severed from the indictment before the trial, and to which Mr Luo pleaded guilty after the verdicts were returned.
2. There are agreed facts on sentence tendered as part of the prosecution bundle. [40] There is no suggestion that any of the other offenders played any part in this offence or had any knowledge of it. Further, while counsel for Mr Luo suggested it was part of a connected series of events for the purpose of the application of the totality principle, there was no suggestion that the facts of this offence impacted on the factual findings in relation to the other offences, except that it demonstrates that Mr Luo had access to a firearm before 1 February 2017.
3. At around 11:00pm on 29 January 2017, Mr Luo and Mr Rivers drove together in a rented car to the Willoughby area. Just before 2:00am, they parked near the residence of Ada Chan and Mr Luo exited the car carrying a .22 calibre firearm. Mr Luo fired three shots at the dwelling, hitting the top floor of the premises. There were two people inside the residence and Mr Luo did not know where they were situated. By his plea of guilty, Mr Luo acknowledged that he acted with reckless disregard for their safety.
4. Mr Luo then returned to the Kia Rio parked around the corner and Mr Rivers drove them back to Mr Luo's apartment in Burwood.
5. The Prosecutor did not submit that the shooting was done in retribution for any drug debt or because Ada Chan was involved in the transaction that led to Jun Jia owing such a debt. However, he did submit: "We now know, inherent in Luo's plea to the other shooting matter, that Mr Luo had access to a firearm. That provides some support for Mr Rivers' evidence that the firearm that was kept at the unit that Mr Luo and Mr Rivers and Mr Fan shared ‑ well, firstly that there was such a firearm and that that was the firearm that was used in that other incident. There were multiple firearms taken to Kennedy Street and the Crown says that indicates an intention to do more than just go in and intimidate." [41]
6. I accept that Mr Luo's access to this firearm on 29 January 2017 is relevant to his access to guns on the day of the murder and, along with the evidence to which I will now turn concerning Mr Bayliss' supply of at least one gun, supports the proposition that multiple firearms were taken to the Temple and this fact is relevant to the nature and extent of that criminal enterprise.

The supply of drugs and guns (or at least one gun) on 1 February 2017 and (deemed) supply of drugs by Mr Bayliss

1. On 1 February 2017, Mr Bayliss drove from the Central Coast to meet with Messrs Liu, Fan and Luo. He travelled with Martina Sellers (a pseudonym). [42] At that meeting, Mr Bayliss was supplied with methylamphetamine and he supplied the three men with at least one firearm.

The supply of methylamphetamine to Mr Bayliss

1. There was a statement of agreed facts relating to the charge of supplying methylamphetamine to Jacob Bayliss to which Messrs Liu, Fan and Luo pleaded guilty. [43]
2. On the morning of 1 February 2017, Mr Bayliss sent a text message to Mr Liu saying, "jus woke up, I'm on my way to c u now…". Mr Liu lived in an apartment block in Railway Parade at Burwood. Mr Bayliss invited Martina Sellers to accompany him and told her they would have some lunch in Sydney and "get on". While they were driving down to Sydney, Mr Bayliss passed Ms Sellers a black backpack and asked her to count a bundle of money that totalled about $7,600. [44]
3. CCTV footage proves that Mr Bayliss and Ms Sellers arrived at the apartment complex in Burwood at around 5:08pm. There were text messages between Mr Liu and Mr Bayliss arranging to meet. At 5:19pm Mr Liu, Mr Bayliss and Ms Sellers got out of the lift on Level 13 and went to Mr Liu's apartment. Mr Bayliss gave Mr Liu $7600 in cash as payment for "two ounces of methylamphetamine (Ice)". Mr Liu said he was waiting for "his brothers" (Messrs Luo and Fan). They arrived at 7:25pm and went up to the unit. Mr Liu gave the cash to Mr Fan and Mr Fan handed two ounces of Ice to Mr Bayliss.
4. The quantity of drugs involved in this transaction (2 ounces which is around 56 grams) was well in excess of the indictable quantity (5 grams) but substantially less than the commercial quantities (250 grams). It was not a street-level deal. Mr Bayliss tested the quality of the drugs by smoking it and confirmed the weight using scales. Mr Luo and Mr Fan left Mr Liu's apartment at 8:40pm carrying the cash. Mr Liu stayed in the apartment with Mr Bayliss and Ms Sellers. Mr Bayliss and Ms Sellers left the apartment at about 9:08pm.

Supply of drugs by Mr Bayliss

1. The following day (2 February 2017) Mr Bayliss was a passenger in a black Hyundai when it was stopped by police in Woy Woy. Mr Bayliss's behaviour aroused suspicion and police conducted a search of the car. Police located 41.9 grams of amphetamines and $4,450 in cash. It seems likely that the drugs located on 2 February 2017 was what was left of the drugs obtained from the co-offenders the day before.
2. The quantity possessed by Mr Bayliss exceeded the trafficable quantity for methylamphetamine (3g) and the supply charge was based on the deeming provisions of the Drugs Misuse and Trafficking Act 1985. I am satisfied that Mr Bayliss was a low-level drug dealer.

The gun supply by Mr Bayliss

1. The evidence of the supply of firearms came almost exclusively from Ms Martina Sellers. Her evidence received some general support from the CCTV footage and evidence of communications via telephone. Ms Sellers was an unsatisfactory witness and the important evidence upon which the prosecution relied came mostly when she adopted things she had said in a statement.
2. Ms Sellers made an induced statement to police on 29 June 2017 purporting to detail the events of the drive to Sydney and inside Mr Liu's apartment. However, when the Prosecutor obtained leave to cross-examine her, she denied large portions of her statement. In particular, she denied seeing or hearing anything to do with guns on 1 February 2017. The evidence of what was in her statement was before the jury, and I rejected an application under s 136 of the Evidence Act 1995 (NSW) to limit the use of Ms Sellers' evidence so it could only be used as evidence going to her credibility. [45] The jury were instructed that they could use the evidence of what was in her statement but provided with strong warnings to the effect that they should not act on this (hearsay) evidence in the absence of supporting evidence. [46]
3. In the statement, Ms Sellers described the supply of two guns. She described one as a "long brown and black gun" which he took up to the apartment with him wrapped in a shirt. [47] That gun was the subject of count 2 and the jury convicted Mr Bayliss of supplying a firearm pursuant to that charge. The second gun was described as "another black gun that looked dodgy, as it had black duct tape wrapped around it". [48] This second gun was the subject of count 3 in relation to which the jury found Mr Bayliss not guilty.
4. Ms Sellers also referred to Mr Liu producing his own gun at one stage: "I saw the Asian open a small black case that had a zipper and took out a small gun. This gun was not like a police gun, it was like a cute miniature cowboy gun, it was all black." [49]
5. There were significant issues ventilated at trial with the way in which Ms Sellers' statement was obtained. She was questioned in prison, days before her release, and she said she was high on drugs and did not remember providing the statement.
6. The mixed verdicts on counts 2 and 3 are explained by the contents of the CCTV footage taken from the lift. It depicts Mr Bayliss carrying something under his shirt. When this footage is slowed down and focussed upon, I am satisfied (as the jury must have been) that it depicts the butt of the gun described by Ms Sellers.

The murder and attempted murder of 1 February 2017

1. This brings me to the critical circumstances and factual findings regarding the murder of Mr Wu and the attempted murder of Jun Jia at the Kennedy Street premises on 1 February 2017.

The so-called Temple and the so-called Master

1. Before turning to the shooting, it is necessary to outline some further background concerning Jian Feng Weng (or "Sifu") and the premises at Kennedy Street. The details were adduced from Mr Weng himself, Trong Nhan ("Steven") Nguyen, Anna Lee, Peter Criniti and, to an extent, Mr Jia.
2. Mr Weng was the owner and occupier of the house in Kennedy Street for a number of years. It had been converted into what was described as a private and makeshift Buddhist Temple sometime in 2011. [51] In 2014, there was a stabbing murder at the Temple involving two of Mr Weng's students or "disciples". There was no direct evidence that the offenders were aware of the earlier homicide, although there was evidence that the circumstances were widely known. [52] There was a suggestion that the Temple was known as a dangerous place.
3. Mr Weng was arrested and taken into custody in April 2016. Mr Luo was one of Mr Weng's "disciples" and lived at the Temple for a period of time. Mr Weng entrusted Mr Luo to look after the Temple while he was in custody. [53]
4. Mr Weng was released from custody on 31 January 2017, the day before the shooting. He returned home to find that the Temple had been ransacked and valuable property had been stolen. Mr Weng contacted Peter Criniti, a friend who he had met in Silverwater Gaol, and asked for a loan to allow him to clean up the house and replace household items that had been stolen. [54] Mr Criniti gave evidence that he went to Mr Weng's house and saw that it had been "trashed" and "vandalised". [55] Ms Li had visited the Temple during Mr Weng's incarceration and said the premises had been "trashed" from as early as May 2016. She told Mr Weng about this when she visited him in gaol. [56] The value of the property was estimated to be about $500,000 and included designer clothing worth $100,000, a massage chair, and a collection of fine wine including several bottles of first-growth Bordeaux and a highly regarded but overpriced domestic shiraz. [57] Mercifully, how it was that a Buddhist "Master" came by this kind of property, and to what use it was put, was not explored in evidence. I infer that there was more to "Sifu" and his Temple than met the eye or was explored in the court case. There was evidence of drug use and inferentially, other criminal activity taking place at the Temple. There was also evidence that Mr Weng had a number of followers or disciples and that he commanded respect and perhaps fear within the community in which he was known.

The communications preceding, and leading to, the attendance of relevant players at the Temple

1. By WeChat message at about 2:15pm on 1 February 2017, Mr Weng summoned Jun Jia to the Temple to arrange the return of his wife's blue Jaguar car. [58] Mr Weng's evidence of this was supported by the evidence of Anna Lee, [59] and the telephone records tendered at trial.
2. Meanwhile, Mr Weng was attempting to contact Mr Luo through WeChat because he held Mr Luo responsible for the missing property and damage to the Temple. [60]
3. Mr Al Batat arrived at the Temple in the early evening between 5:00pm and 7:00pm. [61] He was there to help clean up the house. Steven Nguyen, Mr Weng's friend and carer, was already at the Temple with Mr Weng. Mr Weng gave evidence that he started talking to Mr Al Batat about the fact that he wanted to get Mr Luo over to the Temple. Mr Weng knew that Mr Al Batat and Mr Luo were friends. He asked if he knew where Mr Luo was and, at that stage, Mr Al Batat said he did not know. [62]
4. At 7:59pm, Mr Weng (under the username 'Blood is seen where the sword goes') sent a WeChat message to Mr Luo saying, "Where are you my brother?" [63] At 8:49pm, Mr Luo responded saying "Who is it?" and Mr Weng responded at 9:00pm with "Your master". [64] Mr Luo had left Mr Liu's apartment in the company of Mr Fan about nine minutes earlier.
5. At around 9:08pm, Mr Weng, Mr Al Batat and Mr Nguyen decided to order pizza. There was further communication at around this time between Mr Weng and Mr Luo and Mr Luo said he would come over "shortly". The pizza order was despatched at around 9:30pm according to investigations made by the police. [65] Messrs Jia and Wu arrived at the Temple after the three men finished eating and Mr Jia gave evidence that they saw pizza boxes on the table. Mr Weng made several attempts to find out when Mr Luo would arrive but did not receive a clear or satisfactory response. Mr Weng then asked Mr Al Batat to contact Mr Luo on his behalf and Mr Al Batat made a 'phone call to Mr Luo at about 10:01pm. [66]
6. After the 'phone call from Mr Al Batat at 10:01pm, Mr Luo attempted to contact Mr Liu and Mr Fan but was unsuccessful. At about 10:04pm CCTV captured Mr Rivers and Mr Luo leaving Mr Luo's Burwood apartment in a Kia Rio. Mr Luo finally contacted Mr Fan at 10:10pm and had a 'phone call that lasted 45 seconds. Mr Fan called and spoke to Mr Liu one minute later. CCTV captured Mr Liu leaving his apartment in Burwood at 10:18pm and Messrs Liu and Fan driving from Burwood in Mr Fan's gold Toyota Prado at 10:35pm. By this stage, Messrs Luo and Rivers were already in Guildford and waiting for the other two men to arrive.

The case against, and acquittal of, Mr Al Batat

1. The case against Mr Al Batat in relation to counts 4 and 5 at trial was that he communicated Jun Jia's presence to Mr Luo during the 'phone call he made to Mr Luo at 10:01pm and that he did so, complicit in the knowledge that Mr Luo was involved in a joint criminal enterprise, to kill Jun Jia. [67]
2. The jury's verdict, acquitting Mr Al Batat on counts 4 and 5 is capable of explanation on various bases. The jury may not have been satisfied beyond reasonable doubt that there was a contract to kill or any such joint criminal enterprise, or it may not have accepted that Mr Al Batat was a party to the agreement. It may have reasoned that Mr Al Batat did not make the alleged 'phone call to Mr Luo or, if he did, did not tell Mr Luo that Jun Jia was at the Temple. The fact that he communicated the critical information was said by the Prosectuor to be supported by the timing of the communication and the conduct of Mr Luo (and the others) immediately after the 10:01pm call.
3. The offenders submitted that the acquittal of Mr Al Batat impacted on the question of whether Messrs Luo, Liu and Fan even knew that Mr Jia was at the Temple on 1 February 2017. They relied on the fact that Mr Weng was asking Mr Luo to attend, and that Mr Al Batat was carrying out Sifu's instructions in making that call. It was submitted that there is a reasonable possibility that Mr Luo attended because he was summoned by Mr Weng to discuss the damage to the Temple and that he may have attended for that purpose, irrespective of any knowledge of Mr Jia's presence.
4. However, to convict Mr Luo and Mr Fan of counts 4 and 5, the jury must have accepted that the offenders knew that Jun Jia was at the Temple. The way the case was left to the jury was that the offenders were part of a joint criminal enterprise to kill Jun Jia or "to intimidate Jun Jia with the use of a loaded firearm". So much is clear from the written directions on Joint Criminal Enterprise and Extended Joint Criminal Enterprise and from the summing up on those topics. [68]

The shooting

1. The evidence of the critical events came from Jun Jia, Mr Weng and Mr Nguyen. The accounts given by the three men were generally consistent but there were some conflicts concerning important details. There was inconsistent evidence about the number of shots fired, the number of guns involved, and who was carrying those guns.
2. The offenders, particularly Mr Luo, submitted that Mr Weng and Mr Nguyen were not reliable witnesses. Mr Weng suffers from schizophrenia and it was suggested that he was suffering from auditory and visual hallucinations at the time of the shooting. Mr Nguyen is a diabetic, and a paramedic who attended after the shooting said that Mr Nguyen was experiencing a hypoglycaemic episode, which could have affected his vision. [69] Mr Nguyen also made a statement to police immediately after the event saying that he did not recognise the offenders when, in fact, he had met Mr Luo more than once and identified him in a later statement (made on 1 August 2017). While I have considered these submissions and inconsistencies, and while I doubt Mr Nguyen's evidence about his precise location at critical moments, my impression was that both Mr Nguyen and Mr Weng were making an honest attempt to give accurate evidence. I am less convinced about the honesty of Jun Jia. I found his evidence to be argumentative, non-responsive and, in some respects, deliberately evasive and false.
3. The events inside the Temple were chaotic. Initially, Mr Liu and Mr Luo entered together while Mr Fan waited outside, although his exact whereabouts at that stage and what he was doing are not clear. The two men approached the front door but were asked to enter through the rear because the front door was obstructed. Mr Liu was carrying a loaded firearm while (it seems) Mr Luo was not armed. There was no evidence that Mr Luo produced a weapon at that stage.
4. On hearing that Mr Luo was outside, Mr Jia said to Mr Weng, "Do you want me to slap him around?" or "Do you want me to bash him?" [70] . When they entered, Mr Luo introduced Mr Liu to Mr Weng. On Mr Jia's evidence, Mr Luo then shouted "What did you just say?" to Mr Jia. [71] Mr Luo asked Mr Jia to step into a room adjacent to the main lounge room to "talk". A short time later, a struggle ensued. [72]
5. Jun Jia and Mr Weng gave evidence that there were two separate struggles; one between Jun Jia and Mr Luo and a second involving Mr Wu and Mr Liu. [73] At some stage during the struggle, Mr Liu produced a handgun from the pouch he was carrying and pointed it at Mr Jia's head. Qin Wu then advanced and either grabbed the gun (or tried to grab it) from Mr Liu. Mr Liu then aimed at Mr Wu. It seems there may have been a further struggle between Jun Jia and Mr Luo, during which Mr Luo called out Mr Liu's name and the gun was discharged. [74] Qin Wu received a fatal gunshot wound to the chest (Count 4). Later, paramedics were unable to resuscitate him and he was pronounced dead at the scene. [75]

Events after the shooting

1. After the shooting, Messrs Luo, Rivers, Liu and Fan travelled to Xiaolei Yang's house in Ashfield to stash the guns. Mr Yang said he received an unexpected call from Mr Fan in the middle of the night. When Mr Fan arrived, he said that he "needed help" and needed to leave some items. Mr Fan handed Mr Yang a metre-long bag with a Louis Vuitton logo that contained "two or three" guns. [90] Mr Liu also gave Mr Yang a backpack that he said contained a small revolver, which he picked up the following day. [91]
2. The offenders then travelled to a granny flat in Croydon where Mr Fan sometimes lived with his girlfriend, Maggie Hsu. Mr Rivers gave evidence that James arrived about half an hour later and had a conversation with Messrs Luo and Fan in Mandarin. The prosecution relies on the evidence of Mr Rivers alone and submits that James' alleged attendance that night supports the proposition that James was behind a contract to kill Jun Jia. Because the evidence came from Mr Rivers and receives no support from any reliable source, I am not prepared to act on it.

The number of guns used in the shooting

1. As I have indicated, there was a dispute as to the number of firearms the three offenders had access to during the Temple shooting.
2. I am satisfied that Mr Luo had access to at least one firearm before 1 February 2017 because he used that weapon to shoot at the Willoughby house on 30 January. There was evidence that a handgun was kept in Mr Fan's room at Mr Luo's flat. The three men also obtained (at least) one gun from Mr Bayliss on the afternoon or early evening of 1 February 2017. The jury was not satisfied beyond reasonable doubt that Mr Bayliss supplied the second weapon, and the prosecution case on that count was dependant on the uncorroborated evidence of Ms Sellers. Ms Sellers also spoke of Mr Liu showing off a small gun during the visit.
3. The events at the Temple suggest there were at least two guns but there may have been three; Mr Liu initially entered with a handgun but returned with a rifle or shotgun while Mr Luo entered on the second occasion carrying a handgun. It is possible Mr Luo's gun was the one that Mr Liu initially used to murder Mr Wu. It is equally possible that it was a second handgun.
4. Mr Yang's evidence was that he stored 3 or 4 firearms, 2 or 3 in the long Louis Vuitton bag and 1 handgun in the small backpack.
5. Based on this evidence, I am satisfied beyond reasonable doubt that the offenders had access to three firearms during the commission of the offences charged in counts 4 and 5.

Whether there was a contract to kill, the scope of the joint criminal enterprise and the specific intention established on the part of the murderers

1. There are parallel narratives as to why Messrs Luo, Liu and Fan went to the Temple on the night of 1 February 2017. First, there is the fact that Mr Weng demanded Mr Luo's attendance to account for the missing property and damage to the Temple. Then, there is the alleged contract to kill Mr Jia, issued by James and Jackie, and arising from the drug debt or debts. These narratives are not necessarily mutually exclusive. It is open to find that the hostility towards Jun Jia arose from the criminal relationships through drug dealing, drug debt and bad blood between the gangsters, while falling short of satisfaction (beyond reasonable doubt) that there was a contract to kill him.
2. As I have already indicated, it must be accepted - based on the way the case was put to the jury - that the offender knew that Jun Jia was at the Temple when they went there.
3. The evidence that there was a drug debt and that Jun Jia was ripping off his fellow drug dealers was convincing, and I have accepted it. However, the evidence that there was an actual contract to kill Jun Jia is sparse. It largely comes from Leonard Rivers whose evidence was unpersuasive and self-serving and, on my assessment, constructed around his knowledge of the details of the prosecution case. There is also the fact that neither James nor Jackie gave evidence in the trial, and the acquittal of Mr Al Batat in relation to his alleged involvement in two separate shootings, both said to have been instigated by Mr Luo and arising out of the same contract to kill Jun Jia.
4. As a matter of common sense, it is somewhat self-defeating to kill the person who owes you money for drugs.
5. Three things that occurred at the Temple that night are inconsistent with an organised execution arising out of a contract to kill. First, the fact that only two of the offenders went inside initially and only one of them was armed at that time. Second, Mr Luo's action in introducing Mr Liu to Mr Weng was odd if the pair entered the Temple intending to carry out an execution of Jun Jia. Third, the evidence was reasonably clear that, at an early stage, Mr Liu pointed his gun directly at Jun Jia's head and did not pull the trigger. None of those actions is consistent with a contract killing.

The objective seriousness of the murder and attempted murder

1. Objectively, these are very serious offences of murder and shoot with intent to murder. In the case of Mr Liu and Mr Luo, and in relation to both count 4 and 5, the offences are properly categorised as falling towards the upper end of the so-called mid-range of objective seriousness. In saying this, I note the observations of Basten JA in Cargnello v Director of Public Prosecutions (Cth) that the "middle of the range" is a broad categorisation ranging (to put it, as his Honour did, in mathematical terms) from 25% to 75% of the most serious case. [92]
2. The fact that I have not accepted that this was a contract killing takes the case well outside of the most serious examples of murder, but the case remains a very grave example of wanton lawlessness undertaken in the context of a gangland dispute about money and drugs. However, I accept that the offenders did not go into the Temple with the intention of carrying out a cold-blooded execution. Rather, while they were prepared to use their guns, once Mr Liu and Mr Luo approached and entered the Temple, events got out of hand and their ill-prepared plan to intimidate escalated into murder.
3. I do not propose to dwell at great length on the aggravating and mitigating factors under s 21A identified by the parties and which, in what has become (sadly) the customary practice, were the subject of spirited debate and careful analysis. This is not a criticism of counsel who appeared in the case; it is the unfortunate, perhaps unintended, consequence of sentencing legislation such as that contained in s 21A. I have paid careful regard to those provisions, and the multitude of appellate cases they have spawned, but I decline to treat that section as some kind of a checklist. [93]

Mr Luo and Mr Liu

1. The most significant factors informing my assessment that both of the offences committed by Mr Luo and Mr Liu fall at the top of the middle of the range of objective seriousness for crimes of murder and shoot with intent to murder are:

• Each of those offenders formed an actual intention to kill, albeit that intention was formulated towards the end of the incident.
• The offences were part of a planned and organised criminal activity. There was not a great deal of planning and little, if any, premeditation but the context was a gangland dispute about drugs and money. [Counsel for Mr Fan submitted that the offenders' actions relied on as evidence of "planning" were relevant to the armed intimidation. He referred to the case of Tabbah v R, [94] where the Court of Criminal Appeal found that the sentencing Judge erred in aggravating the applicant's sentence pursuant to s 21A(2)(n). The case involved a manslaughter that occurred in the context of a planned robbery. In this case, Mr Wu's death was a tragic consequence of the joint criminal enterprise to intimidate Jun Jia and his murder was not in any sense a planned killing.]
• Multiple firearms were accessed and used. Plainly, this cannot be an aggravating factor under s 21A(2) in the case of count 5 (in which the use of a firearm is an element) and many murders involve the use of a weapon. However, in this case, there were three firearms deployed, at least one was discharged on multiple occasions, and at least two of the offenders were armed. [95]
• The offence took place in Mr Weng's suburban home. [96] The occupants were taken completely unawares by the violence and mayhem that ensued after the offenders entered into the premises.
• Apart from the target and the deceased, two other people's lives were put at risk. It was just a matter of luck that more people were not killed or wounded.

1. Against that, the plan to intimidate was poorly executed and planned and events escalated when the men overheard Jun Jia asking Sifu if he wanted Jun Jia to slap Mr Luo around and when scuffles broke out very soon after they entered the Temple.

Mr Fan

1. Mr Fan's role in the criminal enterprise is unclear. The jury was satisfied beyond reasonable doubt that he was a party to the joint criminal enterprise and I have resolved, for the reasons provided, that the enterprise was to intimidate Jun Jia with the use of loaded firearms. Mr Fan was also held to have contemplated the possibility that his associates would commit murder and shoot with intent to murder. His criminal liability is based on what is often referred to as "extended joint criminal enterprise". I am not satisfied that Mr Fan himself formed an intention to kill (or to inflict grievous bodily harm) and this distinguishes his case, objectively, from the criminality of Mr Luo and Mr Liu.
2. While all parties to a joint criminal enterprise are held accountable for the actions of the other participants, it is appropriate in sentencing to draw sensible distinctions between the roles and culpability of the individual offenders. [97] My assessment is that Mr Fan's objective criminality is significantly less than his co-offenders. As Mr Quilter submitted, it is impossible to determine beyond a reasonable doubt that his involvement commenced before the acquisition of the weapon from Mr Bayliss.
3. Having said that, Mr Fan's criminality is extremely serious. Like the others, he was involved in an offence that occurred in the context of organised crime and he was aware that loaded guns were being taken into a suburban home and into a potentially volatile and life-threatening situation. He was aware that one or more of his co-offenders may kill somebody with a murderous intention and continued to participate in the enterprise. He was aware that Jun Jia owed money for drugs and spoke about that that with Maggie Hsu in the weeks before the shooting. He attended the scene and was obviously ready and willing to provide back up to Messrs Liu and Luo when they went into the house on the first occasion. On the second occasion, he accompanied them to the rear of the premises when the intention was to locate Jun Jia and by which time Mr Liu was carrying a rifle or shotgun and Mr Luo had armed himself with a handgun.
4. Taking all objective features of his offending into account, Mr Fan's offending falls within the middle of the range of offending for the offences of murder and shoot with intent to murder. It is at the lower end of that range but the gangland context of the offending and various aggravating features (the use of multiple weapons and the commission of the offence in company and in a suburban home) take it above the bottom of the range for such offending.

Facilitation of the course of justice

1. On behalf of Mr Fan, Mr Quilter argued that there should be some reduction in sentence "having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise)". [98] I have applied this provision in other sentencing cases, [99] and the Court of Criminal Appeal has considered the correct approach to the section. [100] Mr Quilter placed reliance on various admissions made in advance of the trial, including in the notice of defence case. I accept that Mr Quilter ran the trial efficiently and that certain admissions were made. I have considered the submission but am unable to conclude that Mr Fan should receive any reduction for his facilitation of the course of justice.

The standard non-parole period, totality and cumulation

1. In view of the assessment I have made of the objective criminality, the individual sentences may appear to be relatively low by comparison with the applicable standard non-parole periods. This is the impact of the proper application of the totality principle and the acknowledgement that the standard non-parole period is an important guideline but is not a straitjacket that stifles the discretion of a sentencing Judge. The murder and shoot to intent to murder were part of a single episode and the s 93G offence (applicable only in Mr Luo's case) occurred just a few days earlier. In the cases of Mr Liu and Mr Luo, there is also the complication of pre-existing sentences.
2. To give effect to the totality principle, I have done three things. First, there is only a small degree of notional accumulation within the paradigm of the aggregate sentences. This reflects the fact that counts 4 and 5 were closely connected events. Second, I have taken a flexible approach to the commencement dates within the limits allowed by s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Third, where appropriate and upon a finding of special circumstances under s 44 of the Crimes (Sentencing) Procedure Act 1999, I have made significant adjustments to the non-parole periods. These are deliberate choices calculated to achieve sentences that are proportionate to the criminality involved and ensure the offenders are adequately punished, while also ensuring that the impact of the sentences is not crushing and counterproductive to any hope of future rehabilitation.

COVID-19 protocols and conditions of incarceration

1. In each case, I have taken into account that the offenders have been on remand during a period when the conditions of incarceration are very onerous as a result of protocols and procedures introduced by the Corrective Services to minimise the risk of the spread of the COVID-19 virus within the prison system. This has included extended periods during which offenders being locked in their cells and reduced (or no) personal visit. The psychological impact on inmates is well documented and there are many decisions of the courts in which these matters have been considered. I have taken this matter into account in determining the appropriate sentence and non-parole period in each case.

Parity and proportionality

1. I am yet to refer to the personal circumstances of the individual offenders but the issue of parity and proportionality must be considered in sentencing Mr Luo, Mr Liu and Mr Fan for the offences of murder and shoot with intent to murder. It is important that the sentences comply with the fundamental requirement of equal justice and that none of the offenders is left with a justifiable sense of grievance as a result of an improper disproportion between the sentences imposed on each of them. At the same time, differences between the cases must be recognised and reflected in the sentencing outcomes.
2. I will now turn to the personal circumstances of the four individual offenders.

THE INDIVIDUAL CASES

1. I turn to the individual cases of the four offenders. Apart from considering their personal circumstances, criminal antecedents and custodial histories, I will state or repeat my findings as to the objective criminality in relation to each offence. While some of my early analysis involved a global analysis, it is necessary to make findings based on the acts, role and circumstance of each particular offender. [101] I will also indicate, where relevant, the discounts applicable for any plea of guilty and the approach I will take to the structure of the sentence and the related issues of accumulation, concurrency and totality.

Objective Criminality and discounts for pleas of guilty

1. Considered overall, the totality of Mr Luo's offending over the relevant period is extremely grave. As to his criminality in respect of the individual offences for which he is to be sentenced:

Drug supply

1. The maximum penalty for supplying an indictable quantity of a prohibited drug is 15 years' imprisonment and/or a fine of $220,000. The offence is obviously serious and the quantity involved far exceeded the indictable quantity. Mr Luo was present when the drugs were delivered by Mr Fan to Mr Liu to be on sold to Mr Bayliss. While the offenders appeared to have ready access to drugs, the hierarchy between the three offenders is unclear and it would seem that there were people operating at a higher level within this organisation (loosely defined). In my evaluation, the drug supply offence falls at the lower end of seriousness for offences dealt with on indictment.
2. The plea of guilty was entered almost immediately before the jury trial commenced and essentially as part of the pre-trial procedures. It was a late plea and did not result in any significant saving of court time. The new provisions in s 25D(2)(c) do not apply and the reduction in sentence must be considered by reference to cases such Thomson and Houlten (2000) [102] and R v Sharma. [103] I would reduce the otherwise appropriate sentence for the drug supply offence by 5%.

Shoot at dwelling

1. An offence under s 93GA(1) of the Crimes Act attracts a maximum penalty of 14 years' imprisonment and there is an applicable standard non-parole period of 5 years.
2. Mr Luo fired three shots at a suburban home in a planned and targeted attack. There were two people inside the home at the time of the shooting. There is no suggestion that Mr Luo knew that anybody was present but the shooting occurred at a time when the residents were likely to be at home. No one was harmed although the act had potential to maim or even kill. It is a serious example of an offence under this section and falls within the middle of the range of objective serious contemplated by s 93G.
3. The plea of guilty was not entered "at least 14 days" before the trial and was not entered at the "first available opportunity" following compliance with pre-trial disclosure requirements. There will be a discount of 5% from the otherwise appropriate sentence. [104]

Murder and shoot with intent to murder

1. I have dealt with the objective circumstances surrounding counts 4 and 5 earlier in this judgment.
2. Mr Luo submitted that the objective seriousness of the attempted murder is mitigated because he was provoked by Jun Jia: Crimes (Sentencing Procedure) Act, s 21A(3)(c). He submits that the act "was a reaction in anger to being shot in the leg". [105] As I have said I am unable to resolve the issue of how Mr Luo came by his injury. There was also evidence that Jun Jia said to Mr Weng "Do you want me to bash [or slap] him?" I accept that Jun Jia was a capable man when it came to physical combat and that he did nothing to help or calm the situation. He became involved in a physical confrontation. However, I am unable to find (on balance) that Mr Luo's criminality is mitigated by any relevant form of provocation. He and his cohorts went to the premises with loaded guns with an intention to intimidate Mr Jia and did so aware that murder may be the result. They were the true aggressors.
3. As I have already indicated, Mr Luo's criminality for the offences charged in counts 4 and 5 both fall at the high end of the middle or the range of objective seriousness for offences of their kind.

Conditional liberty

1. At the time of the offending, Mr Luo was on bail for an offence of recklessly inflicting grievous bodily harm for which he was subsequently sentenced. This is an aggravating factor pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999.

Personal circumstances

1. Mr Luo was 31 years old at the time of the offending and he is presently 35 years old. He has a number of previous offences on his criminal record. Between 2005 and 2008, he had some driving offences and a minor drug possession charge and there is a substantial gap in offending between November 2008 and July 2014, save for minor drug possession offences in 2012. In 2014 Mr Luo was charged with the offence of recklessly inflicting grievous bodily harm to which I have referred. On 5 October 2018, he was sentenced to 3½ years imprisonment for that offence with a non-parole period of 21 months. That sentence commenced on 9 February 2017. On 20 May 2019, Mr Luo was sentenced by Judge Culver to an aggregate prison term of 10 years and 10 months with a non-parole period of 6½ years for the supply of indictable and commercial quantities of a prohibited drug. The non-parole period for that sentence expires on 7 May 2025. Judge Culver's remarks (or most of them) were also part of Ex S-A. [106]
2. While the Prosecutor did not submit that Mr Luo's criminal history is an aggravating circumstance, [107] his criminal history disentitles him to leniency and the nature of his record and the offences for which he is to be sentenced means that the criminal records fit within the terms of the aggravating factor identified in s 21A(2)(d). His record heightens the need for personal deterrence and denunciation but the matter ought not to result in a sentence disproportionate to the criminality involved in the present offence.
3. Mr Luo began his life in China where he was raised by his maternal grandparents before immigrating to Australia when he was 8 years old to reside with his mother. Mr Luo reports being subjected to regularly beatings for minor misdeeds and for failing to meet his mother's high standards. Other family members, including an uncle in Sydney and an Aunt in Hong Kong, cared for Mr Luo at different points in his childhood. When his mother returned to China to breed pedigree cats, Mr Luo was 10 years old and was sent to reside with a family friend. Mr Luo said he experienced bullying throughout these years, and this appeared to be racially motivated. By 16 years old, Mr Luo was essentially caring for himself. He was employed for 10 years designing and building computer circuit boards until 2013 when he resumed using drugs. He was also briefly enrolled in a Bachelor of Bioscience. Mr Luo has struggled with a substance abuse disorder since his teenage years and was using drugs heavily at the time the offences occurred.

Totality, accumulation, commencement and sentence

1. Counsel for Mr Luo submitted that the shoot at dwelling offence, the drug supply and the offences on 1 February were all part of "a connected series of events" and that this is relevant to the application of the principle of totality and the degree of accumulation. [111] I accept the offences are at least temporally connected and the structure of the sentence should take that into account.
2. Mr Luo has been in custody since 9 February 2017 and has served the non-parole period for the offence of recklessly inflicting grievous bodily harm. The non-parole period for the aggregate sentence for commercial drug supply will expire on 7 May 2025. That is the latest day that the current sentence can commence but there is a wide discretion as to the commencement date and again, the totality principle has a part to play in assessing the sentence for the instant offences while taking into account the facts and offences for which Mr Luo has already been sentenced.
3. I propose to impose an aggregate sentence under s 53A and will comply with the formal parts of that provision when I impose sentence. While it is not necessary to do so, and for the sake of transparency, I indicate that I would have made the sentence for the drug supply wholly concurrent given when it was committed, its connection to the acquisition of a gun later used in the most serious offence, and the fact that the criminality involved is swamped by the seriousness of the offences committed later on 1 February 2017. However, there would have been a degree of accumulation in relation to the s 93G offence because it is a separate and wanton act of gun violence. There would also have been some accumulation between the murder and shoot with intent to murder to vindicate the dignity of, and recognise the harm inflicted upon, two separate victims. However, those offences were part of the same episode and closely related and the sentences would have been largely concurrent.
4. I will order the sentence to commence on 7 May 2023 which means there is a degree of concurrency with the existing non-parole period. This is, again, to take into account the totality principles and ensure the total effect of the combined sentence is not crushing. While there were no submissions for special circumstances, [112] I am satisfied the accumulation of the sentences should result in such a finding and an adjustment be made to the non-parole period. My objective is to receive a result whereby the total non-parole period is around 75% (72%) of the total period of incarceration. The numbers are not precise and this is not a mathematical undertaking allowing for a correct answer.

Jaiyu Liu

1. In dealing with Mr Liu, I will attempt not to repeat those matters which are common to Mr Luo's case. I will not expand upon my reasons where those reasons are exposed by the things I have said in dealing with Mr Luo.

Objective Criminality

1. The totality of Mr Liu's criminality is also extremely serious. Like Mr Luo, he chose to involve himself in the lifestyle of a gangster, dealing in drugs and, when that went wrong, engaging in lawless gun violence in a suburban home. The sentence to be imposed is the natural and inevitable consequence of that choice. As with Mr Luo, I will impose an aggregate sentence.

Drug supply

1. I will not repeat what I have said about the drug supply offence. It is serious but at the lower end of seriousness for offences of its kind when dealt with on indictment. In his case, there was an earlier offer to plead guilty (in his notice of defence case dated 20 May 2020) although it remained a late plea of guilty. The prosecution and Mr Liu agree that he is entitled to a 10% discount. [113] I agree with counsel's assessment and will allow a 10% reduction in the indicative sentence for this offence. If I were imposing separate sentences, I would make the drug sentence concurrent for the reasons explained in dealing with Mr Luo.

Murder and shoot with intent

1. Mr Liu was the offender who discharged his gun on several occasions, killing Mr Wu and attempting to kill Jun Jia. He submitted that there was no knowledge or "pre-planning" on his part and that his involvement in the joint criminal enterprise "crystalised as late as the point at which Luo told him to shoot at Jia". [114] Ms Carroll characterised the incident, on Mr Liu's part, as a "chance meeting" that escalated into a shooting. Mr Liu relies on the absence of direct telephone contact between Mr Liu and Mr Luo prior to arriving at Guildford. [115] However, there is evidence that Mr Luo had a 'phone call with Mr Fan who was in the car with Mr Liu and the offenders met briefly around the corner before entering the Temple. As to the death of Mr Wu, counsel submitted: "The murder of Wu remains an unplanned and a wholly accidental consequence of their attack on Jun Jia. It may well be, unusually, that the objective criminality involved in the shooting with an intention to kill Jia in fact exceeds that involved in the murder of Qin Wu where the Crown conceded the accidental nature of his death." [116]
2. She submitted that the fact that Mr Wu grabbed the gun that Mr Liu was holding was an "intervening event". [117]
3. I find these submissions unpersuasive if they are meant to impact on a proper assessment of Mr Liu's objective criminality or moral culpability. None of those things, including the loss of Mr Wu's life, would have happened if Mr Liu had not agreed to attend the Temple with his co-offenders armed with loaded guns for the purpose of intimidating Jun Jia, who had fallen out with fellow gangsters over a drug deal gone wrong.
4. I confirm my assessment that Mr Liu's objective criminality of both offences is towards the top of the middle of the range for offences of their type.

Personal Circumstances

1. Mr Liu was born in 1982. He was 33 years old at the time of the offence and is now 39 years old.
2. Mr Liu has a criminal history of driving and minor drug possession offences committed between 2011 to 2016. He also faced the court in 2017 for offences of violence (stalking and affray) and possession of a weapon. On 2 November 2017, he was sentenced for a series of offences by the Burwood Local Court. This included a sentence of 18 months imprisonment for affray with a non-parole period that expired on 22 March 2018. At the same time he was sentenced to 15 months imprisonment for a stalk/intimidate charge and 3 months for possession of a prohibited weapon.
3. Mr Liu's personal history was established by the history he provided to Dr Antonio Simonelli, forensic Psychiatrist. I am prepared to accept that history as accurate. Mr Liu was born in North-East China. He reported some violence in his school environment and a strict home life which included occasions of physical discipline. He reported an incident where he witnessed the killing of a young man outside his school gates but denied that this had an impact on his mental health.
4. Mr Liu immigrated to Australia in 2006 when he was 24 year old. He worked in construction up until 2015 and has been unemployed since. He has two children, aged 10 and 5, and a step-son to his second wife. Mr Liu disclosed a range of personal issues stemming from the breakdown of his marriage and separation from his daughter. [118] Mr Liu also reported a dependence on methamphetamine and a gambling addiction, stemming from the separation with his wife in the period leading up to the offence. He said that he was smoking Ice daily, every few hours, at the time of the offence. He said this was creating significant sleep problems. Mr Liu's drug use on the day of the major offences was confirmed by evidence given at the trial.
5. Mr Liu submits that his perception on the night of 1 February 2017 was affected by drugs. [119] Section 21A(5AA) of the Crimes (Sentencing Procedure) Act precludes self-intoxication at the time of the offence from being taken into account as a mitigating factor and, while I am sure the disinhibition arising from being "high" played a role, I am unable to conclude that it reduced Mr Liu's criminality or moral culpability.
6. Mr Liu has remarried and retains the support of wife and father. He speaks to his wife, ex-wife and children regularly whilst in custody. Mr Liu acknowledged the detrimental effects that his behaviour has had on his life and family and has expressed a desire to continue engaging in group drug counselling programs available in gaol. The psychiatrist noted Mr Liu had "good prognostic indicators" in respect of his mental health and that continued abstinence from drug use and gambling would mean a low risk of re-offending.

Totality, accumulation, commencement, special circumstances and sentence

1. Counsel submits that there ought to be a finding of special circumstances to allow for continued abstention from drugs and gambling under an extended period of supervision in the community. [123] I agree and I would add that accumulation on the pre-existing sentence would result in a non-parole period somewhat (if slightly) exceeding 75% of the total sentence. I will find special circumstances and make a relatively substantial adjustment to the aggregate non-parole period to give effect to that finding.
2. In respect of two major offences (murder and shoot with intent to murder), counsel submits that there should be a high degree of concurrency because the offences occurred on the same day and counts 4 and 5 occurred in a single incident. However, counsel concedes that there would be some accumulation to reflect the separate victims involved. [124] I accept these submissions and it reflects the approach I have taken in deciding what to do with Mr Luo. As with Mr Liu, there will be some [notional] accumulation within the aggregate sentence for the two major offences.
3. Mr Liu has been in custody since 8 February 2017 serving a sentence of imprisonment for an affray. The non-parole period expired on 22 March 2018. Counsel submits that the sentence should be backdated to a date before the expiry of that term. [125] I accept that submission to a limited extent, noting there will be an adjustment for special circumstances and the offending involved is unrelated, thus requiring that the sentence is mostly accumulated. I will order that the aggregate sentence to be backdated to commence on 22 January 2018.
4. In setting the total sentence and non-parole period for Mr Liu, I must give effect to my finding that his objective criminality is about the same as that of Mr Luo in relation to the two major offences. However, I must also take into account his less substantial criminal record and the fact that Mr Luo has the additional, and very serious, offence under s 93G in which Mr Liu played no part.
5. I will impose an aggregate sentence of 28 years with a non-parole period of 19 years. Mr Liu will not be eligible for release to parole until the conclusion of the aggregate non-parole period, that is 21 January 2037.

Drug supply

1. There is nothing to distinguish Mr Fan's role in the drug supply from that of Mr Liu and Mr Luo. As is in their cases, I have taken into account that the matter could have been dealt with summarily and find that the offence as being at the lower end of seriousness when such matters are dealt with on indictment.
2. Mr Fan entered a plea of guilty to this offence on the same date as Mr Luo and will receive a similar discount (5%).

Murder and Attempted murder

1. I accept that Mr Fan's criminality is less than Messrs Liu and Luo. Mr Fan was not present inside the Temple when the murder and attempted murder took place. He did not form an intention to kill but is to be sentenced on the basis that he was a participant in a joint criminal enterprise to intimidate Jun Jia and foresaw the real possibility that Mr Liu would shoot with an intention to kill. He drove to the Temple with Mr Liu aware of what was to happen. As I have said, I am unable to find beyond reasonable doubt that Mr Fan was in possession of a firearm when he entered or approached the backdoor of the premises.
2. I have taken into account various submissions of Mr Quilter, counsel for Mr Fan, in relation to the events after the shooting and the things Mr Fan said as being inconsistent with a premeditated execution.
3. I accept the submission that: "the offence lacked any careful or sophisticated planning. It was carried out in a haphazard way." [126]
4. As I have said, Mr Fan's objective criminality is substantially less than that of Mr Liu and Mr Luo and falls at the low end of the middle of the range of objective seriousness.

Personal circumstances

1. Mr Fan relied on his own affidavit setting out his personal circumstances. [127] He was born in 1971 in Shanghai, China, and was 45 years old at the time of the offence and is presently 50 years old. In 1996, he immigrated to Australia from Tonga to live with his then wife. He has worked in a range of jobs as a chef, a cleaner, a gyprocker, a delivery driver for a Chinese newspaper and in retail at a fruit shop.
2. Mr Fan has a limited criminal history. His only convictions were recorded in 2016 when he was sentenced to 12 months imprisonment with a 6 month non-parole period for an offence of stealing from the person and an assault occasioning actual bodily harm in company. I accept that his lack of a significant criminal record is a mitigating factor under s 21A(3)(e) and a matter that further distinguishes his situation from his co-offenders, particularly Mr Luo. Having said that, Mr Fan is not a first offender and his association with criminal elements militates against a finding that he is otherwise a person of good character.
3. Mr Fan deposed that he was dependent on methylamphetamine for over 10 years. He said he was using the drug a few times a week leading up to the offences. He blames his associations with people involved in the drug scene for his involvement in the offences. Mr Fan says he has abstained from using drugs since his arrest and expresses a desire to continue to detoxify in gaol and avoid associating with other drug users upon his release.
4. Due to his age, employment records, limited criminal history and insight into the negative impact of drugs and criminal associations, I accept that Mr Fan has good prospects of rehabilitation and is unlikely to re-offend on release. These are mitigating features. [128]
5. Mr Fan has a number of health conditions including diabetes, gout and severe dental deformities which restrict his ability to ingest food normally. He is separated from his daughter and his only living parent, who share an apartment in Shanghai. He is relatively isolated in Australia. Mr Fan has had no visitors in prison since the COVID restrictions took effect and his expectations for visitors are limited. He spends his time reading any available Chinese novels and earns a small income working as a cleaner and delivering meals in the gaol. Mr Fan notes the difficulties he has had in communicating with other prisoners due to language barriers and his relative age. These factors have contributed to the harsher experience Mr Fan has had whilst in custody.

Totality, accumulation, commencement, special circumstances and sentence

1. As with the other men, Mr Fan submits that the murder and attempted murder should be seen as a single episode of criminality. Mr Quilter relied on Cahyadi v R, [129] and submitted that it is a matter of particular relevance in Mr Fan's case whose criminality arises because of his participation in the agreement with the relevant foresight, and in circumstances where he was not present when the enterprise escalated from its original purpose. [130] I am not persuaded by the latter part of that submission; Mr Fan was willingly involved in the enterprise and the verdict means he contemplated that things may escalate. He knew his co-offenders had loaded guns. However, as with the other offenders, there will be a substantial amount of notional concurrency in the aggregate sentence.
2. Mr Fan submitted that the drug supply may not have resulted in a full-time custodial sentence if dealt with in isolation, considering the amount involved and Mr Fan's limited history and personal circumstances. [131] In the circumstances, he submits that the sentence for that charge should be wholly concurrent with the murder and attempted murder. That is the approach I have taken with Messrs Liu and Luo and I will for the same course - notionally, because it is an aggregate sentence - in sentencing Mr Fan.
3. I have not found special circumstances in Mr Fan's case. Mr Fan has been in custody for over four years and his sentence will commence on 5 June 2017. The aggregate sentence will be 22 years with a non-parole period of 16½ years.

Jacob Bayliss

1. I turn to Mr Bayliss who stood trial with the three men because the firearms supply occurred on the same day as the Temple shooting and because the prosecution alleged (and I accept) the gun he supplied was used (although not discharged) in that shooting. There is no suggestion that he was involved in, or knew anything of, the events that followed the firearm supply at Mr Liu's apartment on 1 February 2017 and it would be quite wrong to sentence him on the basis that he was in any way culpable for those far more serious offences.

Objective criminality

1. Mr Bayliss is to be sentenced following a guilty verdict for one count of supplying a firearm contrary to s 51(1)(a) of the Firearms Act 1996 (NSW). The offence attracts a maximum penalty of imprisonment of 5 years. There is no standard non-parole period. It is a serious offence. Mr Bayliss knew he was supplying the gun to a group of drug dealers and travelled a long distance to do so.
2. Mr Bayliss also pleaded guilty in the Local Court to one count of drug supply contrary to s 25(1) of the Drug Misuse and Trafficking Act, which attracts a maximum penalty 15 years imprisonment and/or a fine of $220,000. He is entitled to a 25% discount for his early plea of guilty. The drugs he possessed exceeded the trafficable quantity and the circumstances strongly supported an inference of supply.
3. Mr Bayliss travelled from the Central Coast to Mr Liu's apartment in Burwood on 1 February 2017 for two reasons; he was there to buy drugs and he was there to supply a gun. There is a strong inference available that the drugs subject to the supply charge the next day were the drugs supplied by Messrs Fan, Liu and Luo.
4. Mr Bayliss submitted that the drug and gun transactions were independent of each other, despite the temporal and geographical coincidence and the fact that the parties to the transactions were the same. The Prosecutor submitted that "the supply by Bayliss of the firearms within the context of mutual involvement in the drug industry elevates the objective seriousness of the offence". The Prosecutor further submitted that "Mr Bayliss' involvement himself in a drug culture and his knowledge that the people he was supplying guns to were also involved in the supply of drugs is an element of the need for denunciation and punishment and general deterrence that particularly relate to gun offences." [132]
5. I discussed the cases in this area, and the impact that the combination of drugs and guns may have in assessing objective seriousness, in Andary v R. [133] Much turns on the facts and circumstances of the case. The present case is not typical and Mr Bayliss was not using the guns as part of his "tools of trade" as a drug dealer. However, the fact that he was providing the gun to criminals that he knew were involved in the illegal drug trade is relevant. It is worse, for example, than if he was selling them to somebody who was a gun enthusiast or not known to be involved in criminal activity. As I have said, the firearms offence was a serious example of an offence of its kind. However, the gun transaction does not aggravate the drug supply offence.

Criminal history

1. Mr Bayliss has previous convictions for weapons and drug related offences. He has a lengthy criminal record that also includes a number of driving and dishonesty offences. The trial proceedings were adjourned to allow Mr Bayliss to be sentenced by Judge Bright in the District Court for a specially aggravated offence of enter dwelling and two offences of reckless wounding committed on 8 June 2014. Her Honour set out his criminal history as follows: "He has a New South Wales criminal history commencing in 2005 when he was 19 years old. He was dealt with for offences of obtain benefit by deception, use false instrument and goods in custody. In respect of each of those offences, he was placed on a bond. In 2008, he was dealt with for offences of larceny; having a forged instrument with intent to use and possess prohibited weapon without a permit. In respect of each of those offences, he was also placed on a s 9 bond. In 2014 when the offender was 28 years of age, he was sentenced in relation to the following offences: (1) Possess shortened firearm - 18 months imprisonment with a non-parole period of 9 months; (2) Possess housebreaking implements - A fixed term of 9 months; (3) Drive whilst disqualified, goods in custody and carry cutting weapon - In respect of each of those offences, 3 months imprisonment; and (4) Possess ammunition, custody of a knife in a public place and possess prohibited drug - s 10A convictions with no penalty. In that same year he was dealt with for two offences of drive whilst disqualified and sentenced to 3 months imprisonment. In 2016, he was dealt with for the following offences: (1) Police pursuit - Total term 12 months with a non-parole period of 6 months; (2) Drive whilst disqualified - 9 months imprisonment with a non-parole period of 4 months; (3) Carry cutting weapon - 3 months imprisonment; (4) Possess ammunition and possess prohibited drugs (two counts) - s 10A convictions with no other penalty. In 2017, he was dealt with for the following offences: (1) Possess unauthorised pistol - 2 years imprisonment with a non-parole period of 16 months; (2) Possess unauthorised firearm relating to a double‑barrel shotgun and a single barrel-loaded shotgun (two counts) - 14 months imprisonment with a non-parole period of 10 months; (3) Possess prohibited drug - 2 months imprisonment; and (4) Destroy or damage property - 6 months imprisonment. The non-parole period of the offender's most recent sentence expired on 13 August 2018. He has remained in custody since that date in circumstances where on 24 October 2017 he was bail refused in relation to firearms charges that are currently before the Supreme Court." [134]

Personal Circumstances

1. Mr Bayliss' personal circumstances were outlined in a report by a clinical psychologist, John Machlin. [138] Mr Bayliss was born in 1986. He was 30 years old at the time of the offence and is now 35 years old.
2. Mr Bayliss was born in Gosford and raised by his mother who continually relocated to avoid his violent father. He reported a childhood marred by abuse, both physical and sexual, including a sexual assault by his uncle when he was six years old. Mr Bayliss was out of home and attempting to survive independently from the age of 14. He reported having to steal at school because he "had nothing". Mr Bayliss' life from that point onwards appears to have been dictated by his drug addiction. Mr Bayliss spoke of a pervasive addiction to a variety of drugs, including heroin and methylamphetamine. However, he ceased using heroin after a girlfriend tragically died of an overdose. Mr Machlin states that Mr Bayliss' sister, a psychologist herself, confirmed his traumatic upbringing, stating that Mr Bayliss was exposed to his father's violence and lived in fear for his mother's safety throughout his childhood.
3. Mr Bayliss is the father of three children and was involved in the upbringing of three stepchildren. However, his relationship with those children has been disrupted due to his drug use, criminal conduct and periods of incarceration. He does not see himself as a full-time parent as he believes he is "only good in small doses". That assessment seems about right based on his conduct in court and in interviews with police. Some of his children reside with an aunt. While he is currently prevented from seeing them, he hopes to undertake mediation to be able to re-establish contact in the future. He maintains contact with one of his stepsons and one of his biological sons who are now cared for by their grandmother.
4. Mr Norrie submitted that Mr Bayliss' dysfunctional childhood reduces his moral culpability. A similar submission was accepted by Judge Bright and I also accept it.
5. Mr Bayliss' chronic stimulant use disorder is coupled with a reported history of self-harming behaviour, ADHD, bipolar disorder and bouts of drug-induced psychosis. He reports using illegal drugs as a form of self-medication for his mood which is "up and down all the time". He is currently prescribed Seroquel, an anti-psychotic medication, in combination with Endep, an anti-depressant. Mr Machlin provided the following opinion: "In summary, he has a chronic Stimulant Use Disorder against a complex background of clinical problems associated with family dysfunction, personality disturbance, attentional problems and mood disturbance. He may have suffered acute psychotic reactions to drug use and residual psychotic symptoms which are alleviated by his current medication, but I believe it is rare that he has ever suffered a mental illness." [139]

Totality, accumulation, special circumstances and sentence

1. Mr Bayliss has been in continuous custody since 14 February 2017 in relation to unrelated offences. Mr Bayliss' current sentence was backdated to commence on 14 August 2018. The total sentence will expire on 13 December 2026 with the non-parole period expiring on 13 August 2023. The sentences imposed for the subject offences must take into account the principle of totality, which necessitates a review of the total effective sentence set against the totality of the criminality involved for all of Mr Bayliss' offences. It is then possible to determine whether the total outcome is "just and appropriate". [141]
2. Mr Norrie submitted that the threshold in s 5(1) of the Crimes (Sentencing Procedure) Act has not been crossed with respect to the drug supply offence. [142] In view of his custodial status, there is no other practical or appropriate sentence. I will impose a 3 months fixed term sentence which will be wholly concurrent with the sentence imposed for the firearms offence.
3. In relation to the gun supply offence, Mr Norris conceded that no other penalty than imprisonment is appropriate. However, he also submitted that the sentence could be largely concurrent with the sentence imposed by Judge Bright in order to give effect to the principle of totality.
4. I will impose a fixed term of eighteen months commencing twelve months before the expiration of his current non-parole period (that is, on 13 August 2022). The result will be a six months extension of his minimum period of incarceration (so that the non-parole period will now expire on 12 February 2024). I decline to set a non-parole period because the additional period of incarceration (six months) will not expire before the total sentence imposed by Judge Bright. [143] I am conscious of the fact that this sentence will impact on the proportion settled on. However, there will still be a period of over two years for Mr Bayliss to be supervised on parole.

ORDERS AND SENTENCING

1. I will now make the formal sentencing orders to give effect to those reasons.

Ying Cheng Luo: 1. Upon the verdicts of the jury, you are convicted of the offences of (i) murdering Qin Wu and (ii) shooting at Jun Jia with intent to murder, and upon your pleas of guilty, you are convicted of (iii) firing a firearm at a dwelling house recklessly and (iv) supplying a prohibited drug. 2. I will impose an aggregate sentence, and for the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act) 1999, I nominate the following indicative sentences that would have been imposed for the individual offences: 1. Murder - 24 years with a non-parole period 17 years 2. Shoot with intent to murder - 12 years with a non-parole period of 8 years. 3. Firing at a dwelling house, after a discount of 5% for the plea of guilty (rounded down) - 5½ years with a non-parole period of 3 years. 4. Supply prohibited drug, after a discount of 5% for the guilty plea - 9½ months. 1. You are sentenced to an aggregate sentence of 30 years commencing on 7 May 2023 and expiring on 6 May 2053 with an aggregate non-parole period of 20 years commencing on 7 May 2023 and expiring on 6 May 2043. 2. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I am required to warn you that the Act applies to these offences and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Jiayu Liu: 1. On the verdicts of the jury, you are convicted of the offences of (i) murdering Qin Wu and (ii) shooting at Jun Jia with intent to murder, and on your plea of guilty you are convicted of (iii) supplying a prohibited drug. 2. I will impose an aggregate sentence, and for the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act) 1999, I nominate the following indicative sentences that would have been imposed for the individual offences: 1. Murder - 24 years with a non-parole period of 17 years. 2. Shoot with intent to murder - 12 years with a non-parole period of 8 years. 3. Supply prohibited drug, after a discount of 10% for the plea of guilty - 9 months. 1. You are sentenced to an aggregate sentence of 28 years commencing on 22 January 2018 and expiring on 21 January 2046 with an aggregate non-parole period of 19 years commencing on 22 January 2018 and expiring on 21 January 2037. 2. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I am required to warn you that the Act applies to the offences and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Ian Fan: 1. On the verdicts of the jury, you are convicted of the offences of (i) murdering Qin Wu and (ii) shooting at Jun Jia with intent to murder, and on your plea of guilty you are convicted of (iii) supplying a prohibited drug. 2. I will impose an aggregate sentence and for the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act) 1999 I nominate the following indicative sentences that would have been imposed for the individual offences: 1. Murder - 20 years with a non-parole period of 15 years. 2. Shoot with intent to murder - 10 years with a non-parole period of 7 years. 3. Supply prohibited drug, after a discount of 5% for the plea of guilty - 9½ months. 1. You are sentenced to an aggregate sentence of 22 years commencing on 5 June 2017 and expiring on 4 June 2039 with an aggregate non-parole period of 16½ years commencing on 5 June 2017 and expiring on 4 December 2033. 2. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I am required to warn you that the Act applies to the offences and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Jacob Blake Bayliss: 1. You are convicted of the offences of supply a firearm and sentenced to a fixed term of 18 months imprisonment commencing 13 August 2022 and expiring on 12 February 2024. 2. You are convicted of the offence of supplying a prohibited drug and sentenced to a fixed term of 3 month imprisonment commencing on 13 August 2022 and expiring on 12 November 2022. 3. Subject to the decisions of the parole authority, you will be eligible for release to parole at the expiration of the non-parole period, whereupon your will subject to the balance of term imposed by Judge Bright in the District Court on 13 November 2020.

Endnotes

1. R v Al Batat & Ors (No 2) [2020] NSWSC 992.
2. These details were provided in the Prosecution's Sentence Summary tendered at the sentencing hearing.
3. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.
4. The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [16].
5. This is a pseudonym: see R v Al Batat & Ors (No 1) [2020] NSWSC 967 at [32].
6. Tcpt, 2 September 2020, p 140.
7. Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397 at [27]; RPS v R [2000] HCA 3; 199 CLR 620 at [27]-[29]; Summing up Transcript, 17 November 2020, p 100-101.
8. Tcpt, 2 September 2020, p 118, 121-122.
9. Tcpt, 2 September 2020, p 136.
10. Tcpt, 14 September 2020, p 499-500.
11. Tcpt, 14 September 2020, p 503-504.
12. Tcpt, 14 September 2020, p 504-511.
13. Tcpt, 2 September 2020, p 146.
14. Tcpt, 2 September 2020, p 146-149; Tcpt, 9 September 2020, p 390-396.
15. The parties sought a number of advance rulings in relation to Ada Chan's evidence on 13 October 2020. I granted leave to allow the prosecutor to cross-examine Ms Chan after the accused: R v Al Batat & Ors (No 28) [2020] NSWSC 1452.
16. Tcpt, 14 October 2020, p 1672-1674.
17. Tcpt, 14 October 2020, p 1673, 1683, 1686.
18. Outline of submissions on behalf of Mr Luo (MFI S1), p 4; Sentence Tcpt, 18 March 2021, p 23.
19. Tcpt, 4 September 2020, p 228-229.
20. Tcpt, 4 September 2020, p 232.
21. Tcpt, 7 September 2020, p 290.
22. Tcpt, 9 September 2020, p 360.
23. Tcpt, 9 September 2020, p 359-360.
24. Tcpt, 9 September 2020, p 360.
25. Tcpt, 9 September 2020, p 360.
26. Tcpt, 9 September 2020, p 394-395.
27. Tcpt, 11 September 2020, p 466-467.
28. Tcpt, 11 September 2020, p 479.
29. Tcpt, 11 September 2020, p 482, 487.
30. Tcpt, 2 September 2020, p 151.
31. Tcpt, 2 September 2020, p 161.
32. Tcpt, 4 September 2020, p 234.
33. Tcpt, 12 October 2020, p 1572.