R v Duong Hoang LUU - [2003] NSWCCA 39

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v Duong Hoang LUU [2003] NSWCCA 39

FILE NUMBER(S):
60501/02

HEARING DATE(S): 26/2/03

JUDGMENT DATE: 26/02/2003

PARTIES:
REGINA
Duong Hoang LUU (Applicant)

JUDGMENT OF: O'Keefe J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0065

LOWER COURT JUDICIAL OFFICER: Job DCJ

COUNSEL:
PJP Power SC (Crown)
AC Amer (Applicant)

SOLICITORS:
SE O'Connor
Raymond Lee & Company (Applicant)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60501/02
O’KEEFE J
BELL J
26 February 2003

REGINA v Duong Hoang LUU

Judgment

O’KEEFE J: I will ask Justice Bell if she will deliver the first judgment in this matter.
BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by Acting Judge Job (“the Judge”) following the applicant’s conviction at trial on an indictment that charged him with an offence of robbery while armed with an offensive weapon. This offence is provided for by s 97(1) of the Crimes Act 1900 (“the Act”). It carries a maximum penalty of imprisonment for twenty years.
The applicant was sentenced to a term of eight years imprisonment to date from 16 May 2002. That sentence will expire on 15 May 2010. The Judge considered that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) that justified a departure from the statutory proportion as between the sentence and the non-parole period. In this respect he took into account that the applicant was aged twenty-one years at the date of the offence and that he had not previously been sentenced to a term of imprisonment. A non-parole period of five years was specified. The first date upon which the applicant will be eligible for consideration for release to parole is 15 May 2007.
The facts found by the Judge for purposes of sentence are set out in his remarks on sentence as follows:
“The victim Yu Peng Song was a young Chinese student then aged nineteen years of age. He was in the Railway Parade, Burwood at about 2pm on 10 July 2001. Four young Asian men, one of whom was the offender, surrounded the victim. Two of the men were carrying items which the offender believed were large knives wrapped in newspaper. One of the men did say to the victim that he had just come out of gaol. It was the offender who spoke most of all to the victim. He asked the victim to show him his wallet. The victim’s wallet was taken from his pocket. When the wallet was opened a Commonwealth Bank keycard was found. The victim then gave the PIN number to the men, after that had been demanded of him.
Two of the four men then stayed with the victim whilst the offender and one other went…

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

Case: [2003] NSWCCA 39
Decision Date: 26 February 2003

CaseChat Overview and Summary

The case of R v Duong Hoang LUU came before the NSW District Court, where the defendant, Duong Hoang LUU, was charged with multiple counts of serious criminal offences. The charges included offences under the Crimes Act 1900, specifically related to assault occasioning actual bodily harm, and the application of the Crimes (Sentencing Procedure) Act 1999 was pertinent in determining the appropriate penalty. The dispute centred on the severity of the assault and the degree to which the defendant's actions warranted a specific sentence under the statutory framework.

The legal issues before the court involved the interpretation of the Crimes Act 1900 in relation to the nature of the assault and the application of the Crimes (Sentencing Procedure) Act 1999 to determine the appropriate sentence. The court had to consider the gravity of the assault, the extent of the injuries inflicted, and the defendant's criminal history. Additionally, the court needed to ensure that the sentence was commensurate with the seriousness of the crime while adhering to the statutory guidelines for sentencing.

The court meticulously examined the evidence presented, including the medical reports detailing the injuries sustained by the victim and the circumstances surrounding the assault. It was determined that the injuries were significant, and the assault was of a serious nature. The defendant's criminal history was also considered, which included prior convictions for violent offences. The court found that the statutory provisions mandated a custodial sentence, taking into account the need for punishment and deterrence. The defendant was sentenced to a term of imprisonment, with specific regard to the legislative requirements outlined in the Crimes (Sentencing Procedure) Act 1999.

The final orders of the court included a custodial sentence for the defendant, with specific details regarding the term of imprisonment and any additional penalties or conditions imposed under the legislation. The court's decision was based on a thorough analysis of the statutory provisions and the factual circumstances of the case, ensuring that the sentence was both just and in accordance with the law.

Orders