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Luu v The King

Luu v The King

Case [2024] VSCA 267 14 November 2024

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0117

SON LUU	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	14 November, 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 267
JUDGMENT APPEALED FROM:	[2024] VCC 48 (Judge Dalziel)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Importing commercial quantity of border controlled drug – 11.9 kgs of pure methylamphetamine – 15 times commercial quantity threshold for methylamphetamine – Sentence of 12 years, with non-parole period of 8 years – Manifest excess – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Ms K Breckweg with Ms E Addams
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Commonwealth Director of Public Prosecutions

BEACH JA:

On 5 April 2023, the applicant pleaded guilty in the County Court to one charge of importing a commercial quantity of a border controlled drug (methylamphetamine) contrary to s 307.1 of the Criminal Code (Cth). The maximum penalty for importing a commercial quantity of a border controlled drug is life imprisonment.
On 2 February 2024, following a plea hearing on 29 January 2024, the applicant was sentenced to 12 years’ imprisonment, with a non‑parole period of eight years.[1] Pursuant to s 6AAA of the Sentencing Act 1991, her Honour declared that, but for the applicant’s plea of guilty, she would have sentenced him to 16 years, with a non‑parole period of 12 years.
[1]DPP v Luu [2024] VCC 48 (‘Reasons’).
The applicant now seeks leave to appeal against sentence. His proposed ground of appeal is that the sentenced imposed was manifestly excessive.

Circumstances of the offending

At just before 9.00 am on 8 June 2022, the applicant and Amy Mai Nguyen (‘Nguyen’) arrived at Melbourne via Qantas Airlines flight 94, from Los Angeles. Once in the airport, Nguyen removed a suitcase from the baggage carousel and handed it to the applicant. A short time later, the applicant approached the Department of Agriculture, Fisheries and Forestry gate marshal at the passenger processing area. When the gate marshal asked him if he had anything to declare, he did not answer. Instead, he followed Nguyen who had been directed to the quarantine screening lane.
In the examination area, the applicant handed his incoming passenger card to biosecurity officers. That completed card indicated that the applicant intended to holiday in Australia for 10 days. The card stated that the address for the applicant in Australia would be ‘874 Hume Hwy Bass Hill, Bankstown 2197 Vic’. The card also provided that the applicant was not bringing any potentially prohibited goods into the country, including illicit drugs. The applicant declared that he was bringing food and plant items into the country.
The applicant’s suitcase was examined by an X‑ray machine. It appeared to contain several packages of organic material. A biosecurity officer opened the suitcase and…

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 Luu v The King

Details

AGLC: Luu v The King [2024] VSCA 267
Case: [2024] VSCA 267
Decision Date: 14 November, 2024

CaseChat Overview and Summary

The case of Luu v The King involves an application for leave to appeal against a sentence imposed on the respondent, who had been convicted of importing a commercial quantity of a border controlled drug. Specifically, the respondent was found to have imported 11.9 kilograms of pure methylamphetamine, which is 15 times the commercial quantity threshold for methylamphetamine. The primary legal issue before the court was whether the sentence of 12 years imprisonment, with a non-parole period of 8 years, was manifestly excessive. The respondent argued that the sentence was too harsh given the circumstances of the case.

The court considered the arguments presented by the respondent and the relevant legal principles. It noted that the sentencing judge had carefully considered the principles of sentencing and had imposed a sentence that was within the range of sentences that could be considered appropriate for the offence. The court held that the sentence was not manifestly excessive, and that it was not reasonably arguable that the sentence was outside the range of sentences that a properly directed sentencing judge would impose. The court further noted that the respondent's role in the importation of the drugs was significant, and that the sentence reflected the seriousness of the offence.

In light of the above, the court refused the respondent's application for leave to appeal against the sentence. The court held that the sentence was not manifestly excessive, and that there was no reasonable arguability that the sentence was outside the range of sentences that a properly directed sentencing judge would impose. The court emphasised the importance of upholding the integrity of the criminal justice system, and the need to ensure that sentences are proportionate to the seriousness of the offence. The court also noted that the respondent had a significant criminal history, which was a relevant factor in determining the appropriate sentence.

Orders