Luu v R

Case [2008] NSWCCA 285


New South Wales
Court of Criminal Appeal

CITATION: LUU, Phong Tran v R [2008] NSWCCA 285
HEARING DATE(S): 27 November 2008
 
JUDGMENT DATE: 

27 November 2008
JUDGMENT OF: Giles JA; Latham J; Mathews AJ
DECISION: Leave to appeal granted. Appeal dismissed.
CATCHWORDS: Criminal law - sentencing - whether error in failing to find psychiatric diagnosis mitigated offending - or in regarding offending as "objectively most serious" - or in failing to give greater concurrency to sentences for a number of offences - psychiatric report did not support moderation of culpability or less need for denunciation or general deterrence - sentencing judge meant to emphasise seriousness and was correct - offences involved significant independent criminality and no error in discretion when deciding concurrency and accumulation - leave to appeal granted but appeal dismissed.
LEGISLATION CITED: Drug Misuse and Trafficking Act 1985;
Firearms Act 1996.
CATEGORY: Principal judgment
CASES CITED: Cahyadi v R [2007] NSWCCA 1;
Ma and Pham v R [2007] NSWCCA 240;
Mill v The Queen (1988) 166 CLR 59;
R v Allen [2008] NSWCCA 11;
R v Cromarty [2004] NSWCCA 54;
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66;
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369;
R v Tolley [2004] NSWCCA 165;
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168.
PARTIES: Phong Tran Luu - Applicant
The Crown - Respondent
FILE NUMBER(S): CCA 2007/00005566
COUNSEL: P Boulten SC - Applicant
Ms J Girdham - Crown
SOLICITORS: Adam Ly - Applicant
Solicitor for Public Prosecutions - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 07/21/3254
LOWER COURT JUDICIAL OFFICER: Keleman DCJ
LOWER COURT DATE OF DECISION: 16 November 2007 (Sentence on plea of guilty)




                          CCA 2007/00005566
                          DC 07/21/3254

                          GILES JA
                          LATHAM J
                          MATHEWS AJ

                          Thursday 27 November 2008
Phong Tran LUU v REGINA
Judgment

1 THE COURT: After a period of investigation and authorised interception of telephone calls, on 20 December 2006 police executed a search warrant at the applicant’s home at Canley Vale. When the police arrived the applicant and another man were standing at the front door, which the applicant was opening with his keys. The other man was holding a box containing plastic bags of a sugar based cutting agent used with crystalline methylamphetamine (ice). The search found quantities of heroin and crystalline methylamphetamine in different bags and packaging, a considerable number of mobile phones and SIM cards, $10,550 in cash, two pistols and accompanying ammunition, and a round of non-matching calibre ammunition.

2 On 22 December 2006 the police executed a further warrant at the applicant’s home. A New South Wales driver’s licence was found displaying the applicant’s photograph but with a false name and date of birth. The licence had not been issued by the Roads and Traffic Authority, and was a fabrication.

3 The applicant pleaded guilty in the Local Court to four charges brought by Court Attendance Notices,…

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Luu v R [2008] NSWCCA 285
Case
[2008] NSWCCA 285
Decision Date

CaseChat Overview and Summary

Luu was convicted of multiple criminal offences and was sentenced by a sentencing judge in the Supreme Court of Victoria. The appellant, Luu, sought to appeal against his sentence on the grounds that the sentencing judge made several errors in assessing the mitigating factors and the severity of the offences. The central issues in this appeal were whether the sentencing judge erred in failing to find a psychiatric diagnosis that could mitigate Luu’s culpability, whether the judge was correct in considering the offending as "objectively most serious," and if there was an error in not providing greater concurrency to the sentences for the various offences.

The court examined the psychiatric report and found that it did not support any reduction in culpability or a lesser need for denunciation or general deterrence. The court held that the sentencing judge intended to emphasise the seriousness of the offences, which involved significant independent criminality. The judge exercised his discretion correctly when determining the concurrency and accumulation of the sentences. The appeal court found no basis to interfere with the sentence imposed by the sentencing judge, despite granting leave to appeal. Ultimately, the appeal was dismissed, affirming the original sentence as appropriate and justified.

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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