R v Lo - [2001] NSWCCA 271

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Lo [2001] NSWCCA 271

FILE NUMBER(S):
60798/00

HEARING DATE(S): 9 July 2001

JUDGMENT DATE: 13/07/2001

PARTIES:
Regina
Julian Lo

JUDGMENT OF: Simpson J Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/21/0215

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

COUNSEL:
P R Boulten for the Applicant
P G Berman SC for the Crown

SOLICITORS:
D J Humphreys for the Applicant
S E O'Connor for the Director of Public Prosecutions

CATCHWORDS:
Criminal Law
sentencing
plea of guilty
whether discount at the bottom of the range erroneous
utilitarian value of plea of guilty not diminished by strength of Crown case

LEGISLATION CITED:

DECISION:
(1) Leave to appeal granted
(2) Appeal allowed
(3) Sentence quashed
(4) In lieu thereof, applicant sentenced to imprisonment for five years commencing on 14 June 2000
(5) A non-parole period of three years commencing on 14 June 2000, and expiring on 13 June 2003, that being the earliest date on which the applicant will be eligible to be released on parole.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

Friday, 13 July 2001

Simpson J
Sperling J

60798/00 Julian Lo v Regina

Judgment

SIMPSON J: I have read in draft the judgment of Sperling J. I agree with the orders proposed, and generally, with his Honour’s reasons. I would merely add this, in order to make explicit the nature of the error in sentencing as I perceive it.
The sentencing judge referred to R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383, and then said:
“In all of the circumstances of this case and bearing in mind that the Crown case was a very strong one and that the plea of guilty has, I find as a fact, little utilitarian value I quantify the value of the plea of guilty at 10 percent.”
In my opinion the correct interpretation of this passage is that the sentencing judge considered that the strength of the Crown case bore upon the utilitarian value of the plea. That runs counter to an express conclusion stated in Thomson and Houlton. At para 137 Spigelman CJ, with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed, wrote:
“In Winchester v The Queen [(1992) 58 A Crim R 345], Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused (c/f R v Beavan [unreported, Court of Criminal Appeal, NSW, 22 August 1991]. As his Honour put it (at 350):
‘…the extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable.’
In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A ‘recognition of the inevitable’ may qualify the…

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 [2001] NSWCCA 271
Case: [2001] NSWCCA 271
Decision Date: 13 July 2001

CaseChat Overview and Summary

The case of R v Lo involved a defendant appealing against the sentencing imposed by the court. The defendant, Lo, had entered a plea of guilty to the charges against him. The sentencing court had considered the plea but did not apply a discount at the lower end of the range, a decision Lo now sought to challenge. The appeal was heard by the higher court, which had to determine whether the sentencing court's approach was legally sound. Specifically, the court needed to consider whether the sentencing court erred in not applying a discount at the bottom of the range and whether the strength of the Crown's case diminished the utilitarian value of Lo's guilty plea.

The primary legal issue before the court was whether the sentencing court had correctly applied the principles governing the discount for a guilty plea. The court had to consider whether the absence of a discount at the lower end of the range constituted an error of law. Another key point was whether the strength of the Crown's case had any impact on the discount that should be applied for a guilty plea. The court needed to clarify the extent to which the strength of the evidence could affect the discount for a guilty plea, given that the utilitarian value of such a plea is not necessarily diminished by a strong case against the defendant.

The court examined the principles governing sentencing discounts for guilty pleas and noted that the sentencing court's decision to not apply a discount at the lower end of the range was not erroneous. The court held that the strength of the Crown's case did not diminish the value of the defendant's guilty plea. Therefore, the court found that the sentencing court had not erred in law and dismissed the appeal. The appeal was dismissed, and the original sentence was upheld.

Orders