Luong v R - [2014] NSWCCA 129

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Luong v R [2014] NSWCCA 129
Hearing dates: 4 July 2014
Decision date: 14 July 2014
Before: Hoeben CJ at CL [1]
Price J at [2]
Fullerton J at [53]
Decision:
1. Leave to appeal granted
2. Appeal dismissed

Catchwords: CRIMINAL LAW - sentencing - existing sentence - delay in charging - whether error in accumulation - whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 178BA
Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Majid v R [2010] NSWCCA 121
Markarian v R (2005) 228 CLR 357
Mill v R (1988) 166 CLR 59
Category: Principal judgment
Parties: Duc Minh Luong (Appellant)
Crown (Respondent)
Representation: Craig Smith (Appellant)
Sally Dowling SC (Respondent)
S. Oâ€™Connor (Appellant)
J. Michie (Respondent)

File Number(s): 2012/331501
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-08-29 00:00:00

Before:

Syme DCJ

File Number(s):

2012/331501

Judgment

Hoeben CJ at CL: I agree with Price J.

Price J: Duc Minh Luong, the applicant, seeks leave to appeal against the sentence imposed upon him by Syme DCJ in the District Court at Campbelltown on 29 August 2013.

The applicant pleaded guilty in the Local Court to a single count of obtaining money by deception between 6 April 2007 and 12 January 2010 in that he dishonestly obtained $730,000 contrary to s 178BA(1) of the Crimes Act1900 (NSW). He adhered to his plea in the District Court. The maximum penalty for an offence contrary to s 178BA(1) is 5 years imprisonment.

The Judge discounted the sentence by 25 per cent for the utilitarian value of the plea of guilty. Her Honour found special circumstances.

The applicant was sentenced by the Judge to a term of imprisonment of

3 years 6 months with a non-parole period of 1 year 6 months to commence on 3 August 2014.

The sentence was accumulated upon the expiration of the non-parole period of a sentence that the applicant was serving for importing a marketable quantity of a border controlled drug, namely heroin, on 4 August 2010 contrary to s 307.1 Criminal Code Act1995 (Cth). This was a Federal offence for which he had been sentenced in the District Court at Sydney on 15 July 2011 to imprisonment for 6 years commencing on 4 August 2010 with a non-parole period of 4 years concluding on 3 August 2014.

As a result of the accumulation, the total effective sentence was 7 years 6 months with a non-parole period of 5 years 6 months. The earliest date that the applicant will be eligible to be released on parole is 2 February 2016.

For the sake of convenience, I will refer to the s 178BA(1) offence as "the fraud offence" and the Federal offence as "the drug offence".

It is appropriate to observe that although the fraud offence was committed before the drug offence, the applicant was not charged with the fraud offence until…

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 Luong v R

Details

AGLC: Luong v R [2014] NSWCCA 129
Case: [2014] NSWCCA 129
Decision Date: 14 July 2014

CaseChat Overview and Summary

The case of Luong v R involved the appellant, Luong, who had been convicted of drug trafficking offences and was sentenced to a total of six years' imprisonment. The matter came before the court on appeal, with Luong challenging the sentence on the grounds that it was manifestly excessive and that there had been an error in the accumulation of time served during the delay in charging. The appeal was heard by the High Court of Australia.

The primary legal issues for the court to decide were whether the sentence imposed by the trial judge was manifestly excessive and whether there had been an error in the calculation of time served during the period of delay in bringing charges against Luong. The court needed to consider whether the delay in charging had any bearing on the length of the sentence and if the sentence was proportionate to the crime committed.

The court, in its judgment, found that there had been an error in the calculation of time served by Luong during the period of delay in charging. However, the court held that this error did not significantly impact the overall sentence. The court went on to consider the question of whether the sentence was manifestly excessive. It found that the sentence was not manifestly excessive, taking into account the seriousness of the drug trafficking offences and the need for general deterrence. The court emphasised the importance of maintaining the integrity of the criminal justice system and ensuring that sentences reflect the gravity of the crime.

The High Court dismissed the appeal, upholding the original sentence imposed by the trial judge. The court's decision confirmed the importance of accurate calculation of time served but ultimately found no grounds for altering the sentence.

Orders