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.
Adam Ly - Applicant Solicitor for Public Prosecutions - Respondent
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
07/21/3254
LOWER COURTJUDICIAL 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,…
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
AGLC
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.