Lu v R - [2014] NSWCCA 307

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lu v R [2014] NSWCCA 307
Hearing dates: 18 November 2014
Decision date: 15 December 2014
Before: Price J at [1]
McCallum J at [2]
R A Hulme J at [26]
Decision:
Leave to appeal allowed;
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentencing - offence of cheating or defrauding being a director of a company - where offender holding himself out as a financial advisor - whether open to have regard to abuse of a position of trust as an aggravating factor
Legislation Cited: Crimes Act 1900, ss 172 and 176A
Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(k) and 53A
Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; 88 ALJR
R v Martin [2005] NSWCCA 190
R v Suleman [2009] NSWCCA 70
Category: Principal judgment
Parties: Eric (aka) Minh Lu (appellant)
Regina (Crown)
Representation: Counsel:
NJ Adams (Crown)
M Johnston (appellant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid of New South Wales (appellant)

File Number(s): 2010/284076
Publication restriction: None
Decision under appeal

Date of Decision:

2013-09-13 00:00:00

Before:

McClintock DCJ

File Number(s):

2010/284076

Judgment

PRICE J: I agree with McCallum J.

McCALLUM J: Eric Lu seeks leave to appeal against the sentence imposed upon him in the District Court after he was found guilty by a jury of 21 counts of cheating or defrauding being a director of a company contrary to s 176A of the Crimes Act 1900. The applicant was arraigned on an indictment that contained 22 counts contrary to that section but one was the subject of a verdict of not guilty by direction. The indictment also contained one count of obtaining money by deception contrary to s 178BA of the Act of which the applicant was also found guilty.

The offences contrary to s 176A carried a maximum penalty of imprisonment for 10 years. The offence contrary to s 178BA carried a maximum penalty of imprisonment for 5 years. No standard non-parole period was prescribed in respect of either offence.

The offences were committed over a period of more than 3 years. There were 11 separate victims. As noted by the sentencing judge, the amounts defrauded ranged from $8,000 (count 20) to $300,000 (count 4). However, the victim of the charge relating to $8,000 was defrauded a total of $207,845 (counts 19 and 20) while the victim of the $300,000 fraud was defrauded a total of $385,000 (counts 3 and 4). The total amount defrauded in the s 176A offences was almost $2.163 million. One of the victims lost two houses he had purchased with a compensation payout received after a serious car accident. One was an elderly man who lost his life savings and had to go on an old age pension. One lost the property he bought with what remained of his assets after a divorce. As a result of the divorce he had become severely depressed and was on a disability pension. Another elderly couple, parents…

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 Lu v R

Details

AGLC: Lu v R [2014] NSWCCA 307
Case: [2014] NSWCCA 307
Decision Date: 15 December 2014

CaseChat Overview and Summary

In the case of Lu v R, the respondent, Mr Lu, was convicted for offences of cheating or defrauding while acting as a director of a company. The trial court imposed a sentence of imprisonment and a fine. The appeal was centred on the sentencing process, particularly the consideration of aggravating factors by the trial court. Mr Lu contended that the court should not have considered the abuse of a position of trust as an aggravating factor in sentencing.

The court was required to determine whether the trial court correctly exercised its discretion in sentencing. Specifically, it had to consider whether the trial court was entitled to regard the abuse of a position of trust as an aggravating factor in the circumstances of the case. The court had to examine the nature of Mr Lu's role as a director and financial advisor and assess whether his position of trust was abused in a way that warranted this consideration.

The court held that the trial court was entitled to regard the abuse of a position of trust as an aggravating factor in sentencing. The court found that Mr Lu's role as a director and financial advisor placed him in a position of trust and confidence. The court observed that he had abused this position by engaging in fraudulent conduct, which had a significant impact on the victims. The court concluded that the trial court was correct in taking this factor into account in determining the appropriate sentence. The appeal was dismissed, and the original sentence was upheld.

Orders