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Luu v The Queen

Luu v The Queen

Case [2018] VSCA 92 16 April 2018

Appeal

Sentencing

Contravention of Community Correction Order

Totality Principle

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0266

MINH LUU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ, OSBORN and BEACH JJA
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	16 April 2018
DATE OF JUDGMENT:	16 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 92
JUDGMENT APPEALED FROM:	DPP v Luu (Unreported, County Court of Victoria, Judge Gucciardo, 22 November 2017)

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CRIMINAL LAW – Sentence – Appeal – Multiple offences – Applicant sentenced to imprisonment for 1 year and 18 month community correction order – Contravention of community correction order – Community correction order cancelled – Applicant sentence to 6 months’ imprisonment for contravention of CCO – Upon cancellation of CCO, applicant sentenced to total effective sentence of 3 years with non-parole period of 2 years – Applicant already served 1 year term of imprisonment – Sentence for contravention of CCO in excess of maximum term of imprisonment – Crown concessions that sentence breached totality principle and manifestly excessive – Appeal allowed – Original term of imprisonment set aside – Applicant resentenced – Time in custody under original sentence declared as pre-sentence detention – Sentencing Act 1991, ss 11, 18, 83AD and 83AS.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Mr J Connolly	Papa Hughes Lawyers
For the Respondent	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

FERGUSON CJ
OSBORN JA
BEACH JA:

On 22 November 2017, the applicant was sentenced in the County Court, for offending described below, to a total effective sentence of three years’ imprisonment with a non-parole period of two years. He now seeks leave to appeal that sentence on four proposed grounds, three of which are conceded by the respondent. The respondent accepts (correctly in our view) that the sentence imposed must be set aside and the applicant re-sentenced.

Procedural background

On 12 June 2015, the applicant pleaded guilty in the Melbourne Magistrates’ Court to 21 charges arising out of offending that occurred between 10 May 2014 and 19 February 2015 (‘the original offending’). The offences to which the applicant pleaded guilty were trafficking methylamphetamine (two charges), possessing methylamphetamine, trafficking heroin, possessing heroin (three charges), possessing GBH (two charges), dealing with property suspected of being proceeds of crime (four charges), unlicensed driving (two charges), committing an indictable offence while on bail, possessing amphetamine (two charges), trafficking a drug of dependence and possessing a drug of dependence (two charges).

The magistrate sentenced the applicant to one year’s imprisonment and an 18 months’ community correction order (CCO). The CCO included conditions as to supervision, treatment and rehabilitation. It also included a condition that the applicant perform 200 hours of unpaid community work.

Pursuant to s 254 of the Criminal Procedure Act 2009 (‘the CPA’), the applicant appealed to the County Court against the magistrate’s sentence. On the hearing of the appeal, on 24 August 2015, the magistrate’s sentence was set aside as required by s 256(2)(a) of the CPA.[1] At the conclusion of the appeal, the…

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 Queen

Details

AGLC: Luu v The Queen [2018] VSCA 92
Case: [2018] VSCA 92
Decision Date: 16 April 2018

CaseChat Overview and Summary

The case of Luu v The Queen involved the appellant, Luu, who was convicted of multiple offences and sentenced to imprisonment for one year and a community correction order for 18 months. Luu later contravened the community correction order, leading to its cancellation and a new sentence of six months for the contravention. The total effective sentence, including the original term and the contravention, was three years with a non-parole period of two years. Luu had already served one year in custody. The Crown acknowledged that the sentence for the contravention was in excess of the maximum term of imprisonment and had breached the totality principle and was manifestly excessive. The appeal to the court was to challenge the sentencing.

The legal issues that the court had to address were whether the sentence imposed on the appellant for the contravention of the community correction order was lawful and whether it breached the totality principle. The court had to consider the provisions of the Sentencing Act 1991, including sections 11, 18, 83AD, and 83AS. The appellant argued that the sentence imposed for the contravention of the community correction order was manifestly excessive and breached the totality principle, as it was in excess of the maximum term of imprisonment that could be imposed for the original offence.

The court found that the sentence imposed on the appellant for the contravention of the community correction order was manifestly excessive and breached the totality principle. The court accepted the Crown's concession that the sentence was manifestly excessive and breached the totality principle. The court set aside the original term of imprisonment and resentenced the appellant. The time in custody under the original sentence was declared as pre-sentence detention under section 83AS of the Sentencing Act 1991. The appeal was allowed, and the original sentence was set aside. The appellant was resentenced, and the time in custody under the original sentence was declared as pre-sentence detention.

The final orders of the court were that the original sentence of imprisonment for one year was set aside, and the appellant was resentenced. The time in custody under the original sentence was declared as pre-sentence detention under section 83AS of the Sentencing Act 1991. The court accepted the Crown's concession that the sentence imposed for the contravention of the community correction order was manifestly excessive and breached the totality principle. The appellant was entitled to receive credit for the time already served in custody under the original sentence.

Orders