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 J16 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…
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- AGLC
- R v Hung Lo [2005] NSWCCA 436
- Case
- [2005] NSWCCA 436
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HIDDEN J, HIDDEN J, LATHAM J
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