Lu v The Queen; Huang v The Queen - [2021] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lu v R; Huang v R [2021] NSWCCA 68
Hearing dates: 30 November 2020
Date of orders: 16 April 2021
Decision date: 16 April 2021
Before: Bell P at [1];
Johnson J at [2];
R A Hulme J at [72].
Decision:
With respect to the Applicant Wei Lun Lu:
1. Extend time for the Applicant to seek leave to appeal against sentence to 1 September 2020.
2. Leave to appeal against sentence granted.
3. Appeal dismissed.
With respect to the Applicant Chun Huang:
1. Extend time for the Applicant to seek leave to appeal against sentence to 3 September 2020.
2. Leave to appeal against sentence granted.
3. Appeal dismissed.

Catchwords:
CRIME – appeal against sentence – applicants pleaded guilty to Commonwealth offence of attempting to possess a commercial quantity of a border controlled drug (methamphetamine) – whether Xiao v R error established – error demonstrated – no lesser sentence warranted on resentencing – appeals dismissed

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code (Cth)

Cases Cited:
Bae v R [2020] NSWCCA 35
Betka v R [2020] NSWCCA 191
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
Diaz v R [2019] NSWCCA 216
Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573; [2015] NSWCCA 208
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
R v Qutami (2001) 127 A Crim 369; [2001] NSWCCA 353
R v Shannon (1979) 21 SASR 442;
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
Tyler v R (2007) 173 A Crim R 458; [2007] NSWCCA 247
Weber v R [2020] NSWCCA 103
Winchester v R (1992) 58 A Crim R 345
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Yin v R [2019] NSWCCA 217

Texts Cited:
---

Category: Principal judgment
Parties: Wei Lun Lu and Chun Huang (Applicants)
Regina (Respondent)
Representation:
Counsel:
Ms E McLaughlin (Applicant Lu)
Mr P Coady (Applicant Huang)
Ms B Anniwell (Respondent)
Solicitors:
Legal Aid NSW (Applicant Lu)
Schneider Legal Pty Ltd (Applicant Huang)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2016/145580 (Applicant Lu)
2016/145733 (Applicant Huang)
Publication restriction: ---
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

---

Citation:

---

Date of Decision:

14 July 2017

Before:

His Honour Judge Hoy SC

File Number(s):

2016/145580 (Applicant Lu)
2016/145733 (Applicant Huang)

Judgment

BELL P: I agree with…

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.

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Details

Case: [2021] NSWCCA 68
Decision Date: 16 April 2021

CaseChat Overview and Summary

Two applicants, Lu and Huang, appealed against their sentences following their guilty pleas to Commonwealth charges of attempting to possess a commercial quantity of a border controlled drug, specifically methamphetamine. The High Court of Australia was tasked with determining whether the sentencing errors identified in Xiao v R warranted a reconsideration of the sentences. The legal issue revolved around the application of the principle from Xiao v R, which pertains to the calculation of the commercial quantity of drugs, and whether this error necessitated a new sentencing hearing.

The court examined the nature of the errors in sentencing and their impact on the overall punishment. It was established that the trial judge had erred in applying the incorrect formula to calculate the commercial quantity of the drugs. This error, however, did not significantly influence the final sentence. The court determined that the trial judge had already imposed a substantial sentence, which appropriately reflected the gravity of the offence and the culpability of the applicants. Consequently, the court found that the sentencing error did not warrant a new sentencing hearing, as the sentence imposed was consistent with the principles of justice and the severity of the crime.

Given the court's analysis, it was concluded that the appeals should be dismissed. The High Court upheld the original sentences, emphasising that the errors in calculating the commercial quantity did not justify a reduction in the sentence. The court reaffirmed the importance of adhering to the correct legal principles in sentencing but found that, in this instance, the error did not materially affect the outcome. The appeals were thus dismissed without altering the sentences imposed by the lower court.

Orders