R v Lan

Case [2019] QCA 76

SUPREME COURT OF QUEENSLAND

CITATION:

R v LAN [2019] QCA 76

PARTIES:

R
v
LAN
(applicant)

FILE NO/S:

CA No 261 of 2018
SC No 1345 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 14 September 2018 (Boddice J)

DELIVERED ON:

7 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2019

JUDGES:

Philippides and McMurdo JJA and Mullins J

ORDER:

The application for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of the attempted murder (domestic violence offence) of his former partner – where the applicant was sentenced to nine years imprisonment with no further order on the basis of an agreed statement of facts – where the applicant strangled and threatened to kill the complainant and had to be physically restrained by police – where the applicant was 37 years old at the time of the offending and 40 at the time of sentence – where the applicant endured a dreadful childhood, being kidnapped and forced to be a child soldier – where the applicant submits that his sentence is manifestly excessive – whether the applicant should be granted leave to appeal against his sentence

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, applied
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied
R v Ali[2018] QCA 212, considered
R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, applied
R v Kerwin[2005] QCA 259, considered
R v MCT[2018] QCA 189, applied
R v Sauvao[2006] QCA 331, considered
R v Seijbel-Chocmingkwan[2014] QCA 119, considered

COUNSEL:

The applicant appeared on his own behalf
C N Marco for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. PHILIPPIDES JA:  The applicant was convicted on his plea of guilty of attempted murder (domestic violence offence) and sentenced on 14 September 2018 to nine years imprisonment with no further order.  Presentence custody of 849 days was declared as time served under the sentence.

  2. The applicant seeks leave to appeal against his sentence on the basis that it was manifestly excessive.

    Background

  3. The applicant was 37 years of age at the time of the offending and 40 years of age at sentence.

  4. The applicant was sentenced on the basis of an agreed statement of facts.  The complainant and applicant met about two and a half years before the offence in question.  They were involved in a relationship for about a year prior to separating, but remained friends.  Prior to the offence,…

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Details
AGLC
R v Lan [2019] QCA 76
Case
[2019] QCA 76
Decision Date

CaseChat Overview and Summary

The applicant seeks leave to appeal against his sentence of nine years imprisonment, which was imposed following his conviction for the attempted murder of his former partner. The application is based on the contention that the sentence is manifestly excessive. The applicant contends that his background, including a traumatic childhood and experiences as a child soldier, should be considered as mitigating factors.

The legal issue before the court was whether the applicant's sentence was manifestly excessive, warranting the granting of leave to appeal. The court needed to assess whether the sentence imposed was disproportionate in light of the circumstances of the offence and the applicant's background. The court also considered the principle that sentences should be proportionate to the gravity of the offence and the culpability of the offender.

The court determined that the sentence was not manifestly excessive. It found that the attempted murder was a serious offence, involving violent conduct that caused significant harm to the complainant. The court acknowledged the applicant's traumatic background but held that it did not sufficiently mitigate the gravity of the offence. The court also noted that the sentence reflected the seriousness of the crime and was within the range of sentences that could be imposed for such an offence. Consequently, the court refused the application for leave to appeal against the sentence.

The court's final order was that the application for leave to appeal against the sentence be refused.

Orders

Orders of the court

The application for leave to appeal against sentence be refused.

Background

Background to the litigation

The applicant seeks leave to appeal against his sentence on the basis that it was manifestly excessive.Background The applicant was 37 years of age at the time of the offending and 40 years of age at sentence. The applicant was sentenced on the basis of an agreed statement of facts. The complainant and applicant met about two and a half years before the offence in question. They were involved in a relationship for about a year prior to separating, but remained friends. Prior to the offence, they had recently caught up with each other and had seen each other socially on about four occasions. The most recent was on 15 May 2016, two days prior to the offence. On the evening of 17 May 2016, the applicant went to the complainant’s unit at her invitation. They listened to music before leaving to meet friends at a nearby hotel. They returned to the unit about an hour later just after 11.00 pm where they continued drinking alcohol. The complainant was feeling “quite tipsy but not heavily drunk”. The applicant made advances towards the complainant, touching her and trying to kiss and hug her. The complainant asked the applicant to leave which he refused to do. She told him that if he did not leave she would call for help and call the police. The applicant then grabbed the complainant’s mobile telephone from off the coffee table and put it in his pants pocket. The complainant attempted to retrieve her phone and the applicant grabbed the complainant’s arm, pushing her in the chest with both hands, causing her to fall back into the wall. The complainant tried to leave but the applicant blocked her path and pushed her in the chest again, causing her to fall to the ground. The applicant then kneeled on the complainant’s chest and punched her to the right side of her head a number of times. She screamed for help. The applicant then covered the complainant’s nose and mouth squeezing them so hard that she was unable to breathe. At the same time, he placed his other hand around her throat and strangled her. The complainant was resisting and screaming for help. Each time the applicant moved his hand, the applicant threatened to kill the complainant. The complainant lost consciousness for a period. When she regained consciousness, she saw that the applicant was still standing over her. His pants and underwear were down. The applicant proceeded to wrap his t-shirt around the complainant’s head, covering her eyes, nose and mouth. He knelt on the complainant’s chest and covered her nose and mouth with one hand, whilst strangling her again with the other. The complainant was unable to breathe. The applicant whispered, “Ssshh it will all be over soon”. The complainant tried to fight back but the applicant was too strong. Neighbours called the police soon after the incident began. When the police arrived, they heard the complainant gasping for air and muffled sounds of her calling out. When they entered the unit, they saw it in disarray. The applicant was on top of the complainant and was pinning her to the floor and had his right hand around her throat strangling her. His left arm was raised and his fist clenched.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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