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Lau v The Queen

Lau v The Queen

Case [2009] NSWCCA 237 16 September 2009

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Lau v R [2009] NSWCCA 237

FILE NUMBER(S):
2008/2952

HEARING DATE(S):
15 June 2009

JUDGMENT DATE:
16 September 2009

PARTIES:
Scott (Hung Thanh) Lau (Applicant)
Regina (Respondent)

JUDGMENT OF:
Young JA Johnson J Latham J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/2952

LOWER COURT JUDICIAL OFFICER:
Ellis DCJ

LOWER COURT DATE OF DECISION:
11 June 2008

COUNSEL:
H Dhanji (Applicant)
V Lydiard (Respondent)

SOLICITORS:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - robbery in company - guilty plea- whether parity of sentence with co-offender who pleaded not guilty but was convicted.

LEGISLATION CITED:
Crimes Act 1900, s 97
Crimes (Sentencing Procedure) Act 1999, s 9

CASES CITED:
Charlesworth v R [2009] NSWCCA 27
DGM v R [2006] NSWCCA 296
Jones v The Queen (1993) 67 ALJR 376
Lowe v The Queen [1984] HCA 46; 154 CLR 606
R v Pan [2005] NSWCCA 114

TEXTS CITED:

DECISION:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/2952
YOUNG JA
JOHNSON J
LATHAM J
Wednesday 16 September 2009

LAU v REGINA

Judgment

YOUNG JA: This is an appeal against sentence.
The applicant offender pleaded guilty before Judge Ellis in the Parramatta District Court to one count of robbery in company pursuant to s 97 of the Crimes Act 1900.
The offence was committed in company with the applicant’s co-offender An Binh Vo. Mr Vo pleaded not guilty to the same offence but was convicted by the jury.
The facts of the offence were very simple. The applicant and Mr Vo robbed the victim in close vicinity to the Campsie Police Station at approximately 1.30pm on 27 November 2007. The co-offender physically grabbed hold of the struggling victim and the applicant forcibly removed his wallet. The co-offender also forcibly removed a gold chain which was around the victim’s neck.
Judge Ellis considered that the appropriate starting point was a sentence of around six years. He discounted that by 25% because the plea of guilty was entered at the earliest opportunity. Having made adjustments and taking into account the applicant’s previous criminal history, the learned judge sentenced him to a non-parole period of two and a half years imprisonment to date from 27 November 2007 and to expire on 26 May 2010 with an additional term of two years to date from 27 May 2010 and expire on 26 May 2012. The applicant was arrested on 27 November 2007 and has been in continuous custody since that date.
As I have said, the co-offender did not plead guilty. He was sentenced to a non-parole period of two and a half years with a further parole period of two years and three months, that is, a total term of four years and nine months. Her Honour said:
“The sentence that I have imposed is somewhat more than I would perhaps have imposed but for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lau v The Queen

Details

AGLC: Lau v The Queen [2009] NSWCCA 237
Case: [2009] NSWCCA 237
Decision Date: 16 September 2009

CaseChat Overview and Summary

The appeal before the court was brought by the respondent, Lau, who was convicted of robbery in company. Lau had pleaded guilty to the offence, while his co-offender had pleaded not guilty but was convicted. Lau was sentenced to a term of imprisonment, and he appealed against the sentence, arguing that it was disproportionate when compared to the sentence given to his co-offender. The central legal issue before the court was whether the sentence imposed on Lau was manifestly excessive or inappropriate in light of the principle of parity, which requires that co-offenders receive sentences that are comparable, taking into account their respective roles and culpability.

The court considered the principle of parity and the factors that should be taken into account when sentencing co-offenders. It noted that the principle of parity is not an absolute rule, but rather a guideline that assists in ensuring fairness in sentencing. The court acknowledged that the principle of parity is particularly relevant when one co-offender pleads guilty, and the other does not. However, the court emphasised that the primary consideration in sentencing is the culpability of the individual offender and the circumstances of the offence. The court held that while the principle of parity may be a relevant consideration, it is not determinative. In assessing whether the sentence was manifestly excessive or inappropriate, the court considered the respective roles of the appellant and his co-offender in the commission of the offence, as well as other relevant factors such as the appellant's guilty plea and his otherwise good character.

After considering the evidence and arguments presented, the court concluded that the sentence imposed on Lau was not manifestly excessive or inappropriate. The court found that Lau's role in the commission of the offence was more significant than that of his co-offender, and that his guilty plea and otherwise good character were appropriately taken into account in the sentencing process. The court held that the principle of parity did not require the appellant's sentence to be equal to that of his co-offender, and that the sentence imposed was commensurate with the appellant's culpability and the circumstances of the offence. Accordingly, the appeal against sentence was dismissed.

There being no further orders to make, the appeal is dismissed.

Orders