Lu v R - [2007] NSWCCA 74

New South Wales
Court of Criminal Appeal

CITATION: LU v R [2007] NSWCCA 74
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 March 2007

JUDGMENT OF: McClellan CJ at CL at 19; Hulme J at 1; Hislop J at 20

EX TEMPORE JUDGMENT DATE: 16 March 2007

DECISION: Leave to appeal granted; Appeal dismissed

PARTIES: Regina
Quang Hoang LU

FILE NUMBER(S): CCA 2007/2733

COUNSEL: Crown: N Noman
Applicant: C Loukas SC

SOLICITORS: Crown: S Kavanagh
Applicant: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3214

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

- 5 -

2007/2733

McCLELLAN CJ AT CL
HULME J
HISLOP J

Friday, 16 March 2007

Quang Hoang LU v R

Judgment

1 HULME J: In these proceedings the Applicant seeks leave to appeal against sentences imposed on him by Judge Maguire on 26 May 2006 following his plea of guilty to a charge of, on 11 March 2005, supplying heroin. The quantity involved was 24.07 grams. After allowing a discount of 20% because the Applicant pleaded guilty, his Honour imposed a sentence of imprisonment involving a non-parole period of 3 years and 7 months commencing on 2 November 2005 together with a further term of 13 months.

2 The offences arose under the Drug (Misuse and Trafficking) Act which provides a maximum penalty for offences involving less than 250 grams of heroin of 15 years imprisonment. In the case of quantities that are “small” – less than 1 gram - and the offence is prosecuted summarily as almost invariably such offences are, the maximum penalty of imprisonment provided is 2 years although, having said that, I make it clear that I judge the Applicant’s offending against the maximum penalty laid down for the offence with which he stands charged – See Markarian v R (2005) 79 ALJR 31.

3 The “supply” was a deemed supply pursuant to the expanded definition in Section 3 and Section 29 of the Drug (Misuse and Trafficking) Act. The heroin had been found by police when they entered premises in which the Applicant was living. Seven foils containing in total 0.77 grams together with $435 were found adjacent to the hands of the Applicant when police entered his premises. A block located on a computer desk contained a further 23.3 grams with a purity of 24.5%.

4 The Applicant asserted he had purchased the foils that day and that he had paid $4,500 for the block. In an ERISP he maintained that the heroin was for his own use. A statement of a detective-sergeant with considerable experience in drug operations provided strong evidence to the contrary and that the Applicant was a dealer. No oral evidence was given on sentence and his Honour made no express finding on the issue.

5 His Honour took into account on sentence an offence of having goods (the $435) in custody reasonably suspected of being stolen or otherwise unlawfully…

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 [2007] NSWCCA 74
Case: [2007] NSWCCA 74
Decision Date: 16 March 2007

CaseChat Overview and Summary

In the case of Lu v R, the applicant, Quang Hoang Lu, sought leave to appeal against a sentence imposed by Judge Maguire in the District Court, following a guilty plea to the supply of 24.07 grams of heroin. The legal issues before the Court of Criminal Appeal were whether the sentence imposed by the District Court was too high a starting point and manifestly excessive. The Court of Criminal Appeal considered the evidence, including the quantity of heroin involved, the applicant's criminal history, and the need for deterrence and protection of the community. The Court of Criminal Appeal found that, despite the relatively high sentence, it was not manifestly excessive or beyond the legitimate exercise of the sentencing judge's discretion. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, with all three judges concurring.

Orders