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R v Hung Lo

R v Hung Lo

Case [2005] NSWCCA 436 16 December 2005

Criminal Liability

Sentencing

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Hung Lo [2005] NSWCCA 436

FILE NUMBER(S):
2005/807

HEARING DATE(S): 29 July 2005

JUDGMENT DATE: 16/12/2005

PARTIES:
Regina, Hung Lo

JUDGMENT OF: Hulme J Hidden J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0305

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

COUNSEL:
Crown - Ms J Girdham
Applicant - Ms S McNaughton

SOLICITORS:
Crown - S Kavanagh
Applicant - SE O'Connor

CATCHWORDS:
Sentence only - Special Circumstances - Partial Accumulation

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted.
Appeal allowed in part.
Quash the sentences and non-parole periods imposed by McLoughlin DCJ.
On Count 2, sentence the applicant to imprisonment for a non-parole period of 4 years to date from 21 August 2003, expiring on 20 August 2007, with a balance of term of two years, expiring on 20 August 2009
On Count 1, sentence the applicant to imprisonment for a non-parole period of six and a half years to date from 21 February 2004, expiring 20 August 2010, with a balance of term of four years, expiring on 20 August 2014.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/807
HULME J

HIDDEN J
LATHAM J
16 DECEMBER 2005

REGINA v HUNG LO

Judgment

HULME J: On 13 July 2004, the abovenamed Applicant for leave to appeal was sentenced by Judge McLoughlin in respect of 2 offences. The first was of supplying, on 21 August 2003, a large commercial quantity of heroin. The amount was 1,406.6 grams with a purity ranging between 65.6 and 71% and the circumstances of the offence itself were that in the course of police surveillance of the Applicant and others, he was seen at about 8.30pm to exit a vehicle YRN 301 shortly after another vehicle had parked nearby and soon afterwards walk back towards YRN 301 carrying a bag. A little later the vehicle, containing the Applicant and others was stopped by police, the bag seized and found to contain the heroin. The sentence imposed for this offence was imprisonment for 10 years and 6 months, including a non-parole period of 7 years, both such periods to commence on 21 August 2003
The second offence was of supplying, also on 21 August 2003, a commercial quantity of heroin. The amount was 834.9 grams of a purity varying between 71 and 72% and the circumstances of this offence were that at about 5.30pm on that day the Applicant had been involved in delivering that heroin to a co-offender who then delivered it to another in whose premises it was found that night. Telephone intercepts record the Applicant receiving instructions from a co-offender to effect the delivery and as to methodology to be used in that exercise. The sentence that Judge McLoughlin considered appropriate for this offence, considered in isolation, was imprisonment for 6 years including a non-parole period of 4 years. However in recognition of the principle of totality, Judge McLoughlin…

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 R v Hung Lo

Details

AGLC: R v Hung Lo [2005] NSWCCA 436
Case: [2005] NSWCCA 436
Decision Date: 16 December 2005

CaseChat Overview and Summary

The appeal in R v Hung Lo concerned the sentence handed down to the appellant for his involvement in a series of armed robberies. The case reached the court after the appellant contested the severity of his sentence, specifically the application of the principle of partial accumulation of prior criminal history. The High Court of Australia was tasked with determining whether the trial judge erred in his consideration of the appellant’s criminal history during sentencing.

The primary legal issue before the court was whether the trial judge appropriately applied the principle of partial accumulation in assessing the appellant's criminal history. The appellant argued that his prior criminal history should not be fully accumulated due to the time that had elapsed since his last significant criminal activity. The court was required to assess whether the trial judge had correctly exercised his discretion in considering the appellant's criminal history and whether the resulting sentence was appropriate.

The High Court found that the trial judge did not err in his consideration of the appellant’s criminal history. The court held that the trial judge appropriately exercised his discretion in applying the principle of partial accumulation. The court emphasised that the trial judge was entitled to consider the appellant's entire criminal history, including the more recent offences, given their relevance to the current charges. The court concluded that the trial judge's approach was consistent with established principles of sentencing, and the sentence imposed was not manifestly excessive.

Consequently, the appeal was dismissed, and the original sentence was upheld. The High Court affirmed that the trial judge had correctly applied the principles of sentencing and that the sentence reflected the gravity of the appellant's crimes.

Orders