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Lu v The Queen

Lu v The Queen

Case [2008] NSWCCA 261 11 November 2008

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Reported Decision: 190 A Crim R 109

New South Wales

Court of Criminal Appeal

CITATION: Lu v Regina [2008] NSWCCA 261
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 September 2008

JUDGMENT DATE:
11 November 2008

JUDGMENT OF: Beazley JA at 1; Hislop J at 1; Harrison J at 1

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

CATCHWORDS: CRIMINAL LAW – sentencing for the offence of manslaughter by unlawful and dangerous act – revenge attack – long criminal history – exercise of discretion by trial judge – sentence within appropriate discretionary range - CRIMINAL LAW – sentencing – totality – offender on conditional liberty at time of offence – accumulation of sentence on earlier sentence imposed for different offence – partial accumulation would not adequately reflect objective criminality of offence

LEGISLATION CITED: Crimes Act 1900, ss 18, 24
Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(3)(i)

CATEGORY: Principal judgment

CASES CITED: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
Johnson v R [2004] HCA 15; (2004) 205 ALR 346
Lu v R [2007] NSWCCA 74
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v R [1988] HCA 70; (1988) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Avakian [2003] NSWSC 1042
R v Buddle [2005] NSWCCA 82
R v Diab [2003] NSWSC 978
R v Diab [2005] NSWCCA 64
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Hoang [2004] NSWSC 205
R v Hung Duc Dang [2001] NSWCCA 321
R v Lewis [1999] NSWSC 131
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; 163 A Crim R 381
R v Newman (Supreme Court of New South Wales, Barr J, 3 September 1997, unreported)
R v Richards [1981] 2 NSWLR 464
R v Tran [1999] NSWCCA 109
R v WHS (NSWCCA, Hunt CJ, Smart and McInerney JJ, 27 March 1995, unreported)

PARTIES: Hoang Quang LU (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/3354

COUNSEL: A Haesler SC (Appellant)
L Lamprati SC (Crown)

SOLICITORS: William O'Brien Solicitors (Appellant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2006/1992

LOWER COURT JUDICIAL OFFICER: Price J

LOWER COURT DATE OF DECISION: 9 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Lu [2007] NSWSC 1259

- 24 -

CCA 2006/3354

BEAZLEY JA
HISLOP J
HARRISON J

11 November 2008

Hoang Quang LU v Regina

Headnote

The applicant, Mr Lu, pleaded guilty to manslaughter, contrary to s 18 of the Crimes Act 1900. Price J sentenced Mr Lu to a total term of imprisonment of 9 years 4 months, comprising a non-parole period of 6 years…

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 The Queen

Details

AGLC: Lu v The Queen [2008] NSWCCA 261
Case: [2008] NSWCCA 261
Decision Date: 11 November 2008

CaseChat Overview and Summary

The case of Lu v The Queen involved an appeal against sentence where the appellant had been convicted of manslaughter by an unlawful and dangerous act. The incident occurred when the appellant, acting out of revenge, attacked the victim. The trial judge imposed a sentence of imprisonment, taking into account the appellant's extensive criminal history and the circumstances of the offence. The appellant contested the sentence, arguing it was excessive and failed to adequately reflect the totality of the circumstances, including the fact that he was on conditional liberty at the time of the offence.

The legal issues before the court included the appropriateness of the sentence imposed, the relevance of the appellant's criminal history, and whether the trial judge correctly exercised his discretion in sentencing. The court was also tasked with determining whether the sentence imposed adequately reflected the totality of the circumstances, including the appellant's status on conditional liberty at the time of the offence. Furthermore, the court had to consider whether partial accumulation of the sentence on the earlier sentence imposed for a different offence would adequately reflect the objective criminality of the manslaughter offence.

The court found that the sentence imposed by the trial judge was within the appropriate discretionary range, given the appellant's extensive criminal history and the nature of the offence. The court noted that the trial judge had appropriately considered the totality of the circumstances, including the appellant's status on conditional liberty at the time of the offence. The court held that partial accumulation of the sentence on the earlier sentence imposed for a different offence would not adequately reflect the objective criminality of the manslaughter offence, and thus, the full sentence was justified. The appeal was dismissed, and the original sentence upheld.

Orders