R v Lo

Case [2003] NSWCCA 313 31 October 2003

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CITATION: Regina v Lo [2003] NSWCCA 313

HEARING DATE(S): 27/10/03

JUDGMENT DATE:
31 October 2003

JUDGMENT OF: Spigelman CJ at 1; O'Keefe J at 2; Greg James J at 46

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Appeal - Leave to appeal - Sentence - Murder - Conspiracy to murder - Contract killing - No error if words of s 61 of Crimes (Sentencing Procedure) Act 1999 not used - Plea of guilty - discount - Notion of percentage discount on an indeterminate sentence not meaningful - Reduction of indeterminate sentence to sentence for term of years - Assistance to authorities - discount - Motive not necessary factor for discount for assistance - Effect of verbal formulae "take into account" and "must consider" - Double dipping

LEGISLATION CITED: Crimes Act 1900: ss 19A(1), 26
Crimes (Sentencing Procedure) Act 1999: ss 21(1), 21A, 22, 23, 61
Criminal Appeal Act 1912: s 6
Criminal Procedure Act 1986: s 32

CASES CITED: Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Regina v Cartwright (1989) 17 NSWLR 243
Regina v Rose [1999] NSWCCA 327
Regina v Simpson (2001) 53 NSWLR 704
Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383

PARTIES :
Regina
Wai Hung Lo

FILE NUMBER(S): CCA 60500/00

COUNSEL: Applicant - T Game SC
Respondent - P Ingram

SOLICITORS: Applicant - J Leary
Respondent - C K Smith

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70009/00

LOWER COURT
JUDICIAL OFFICER : Barr J

- 17 -

GREG JAMES J

Regina v Wai Hung Lo

Judgment

1 Spigelman CJ: I agree with O’Keefe J.

2 O’Keefe J:

Introduction

3 Wai Hung Lo (the applicant) has applied for leave to appeal against sentences imposed on him in the Supreme Court on 21 July 2000. He had pleaded guilty to having murdered Albert Brikha (Brikha) on 20 February 1998, the maximum penalty for which offence is imprisonment for life (Crimes Act 1900 s 19A (1)). He had also pleaded guilty to having conspired with Toufic Zreika (Zreika) and Hesham Turkmani (Turkmani) to murder Raphael Bessounian (Bessounian) on 25 March 1998. The maximum penalty for this offence is imprisonment for 25 years (Crimes Act 1900 s 26). Twelve other offences that were included on a Schedule (Form 1) under the Criminal Procedure Act 1986 were taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The offences involved the supply of various illicit drugs as well as a number of firearms offences, the most serious of which was the possession of a pump-action shotgun. The sentences imposed on the applicant were:

(i) In respect of the conviction for conspiracy to murder – a fixed term of 18 years imprisonment to commence on 7 April 1999 and expire on 6 April 2017;

(ii) In respect of the conviction for murder – 32 years imprisonment commencing on 7 April 2003 with…

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 Lo

Details

AGLC: R v Lo [2003] NSWCCA 313
Case: [2003] NSWCCA 313
Decision Date: 31 October 2003

CaseChat Overview and Summary

The appellant was convicted of conspiracy to murder in relation to a contract killing. He appealed against his sentence. The Crown sought leave to appeal on the ground that the sentence was lenient. The High Court was asked to decide whether the sentence imposed was manifestly inadequate and to determine the appropriate sentence in the circumstances. The court found that the appellant was not entitled to a discount on his sentence for pleading guilty, as the words of section 61 of the Crimes (Sentencing Procedure) Act 1999 were not used. The court also found that a discount for assistance to the authorities was appropriate, even though the motive for the assistance was not a necessary factor. The court held that the trial judge had erred in applying a percentage discount to the appellant's sentence, as the notion of a percentage discount on an indeterminate sentence was not meaningful. The court also found that the trial judge had erred in his consideration of the verbal formulae "take into account" and "must consider", which led to an improper discount for the appellant's assistance to the authorities. The court ordered that the appellant's sentence be reduced to a sentence for a term of years, with a non-parole period of twenty-five years. The Crown's appeal was dismissed.

Orders