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:
Solicitors:
Ms E McLaughlin (Applicant Lu)
Mr P Coady (Applicant Huang)
Ms B Anniwell (Respondent)
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…
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- Case
- [2021] NSWCCA 68
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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