R v LU

[2007] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION:

R v LU [2007] QCA 62

PARTIES:

R
v
LU
(applicant/appellant)

FILE NO/S:

CA No 334 of 2006
DC No 37 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bowen

DELIVERED EX TEMPORE ON:

7 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2007

JUDGES:

McMurdo P, Jerrard  and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application allowed
2. Appeal allowed
3. Sentence imposed is set aside
4. Order in lieu that the appellant be sentenced to three and a half years imprisonment, with a parole eligibility date of 8 January 2008

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE – WHEN GRANTED – GENERALLY – where the applicant/appellant pleaded guilty to sexual offences – where the offences were committed against the applicant/appellant’s de facto’s daughter – where the applicant/appellant used violence throughout the commission of the offences – whether the sentence was manifestly excessive

Criminal Code Act 1899 (Qld), s 337(1)(a), s 339(1)

R v Demmery [2005] QCA 462, CA No 196 of 2005, 9 December 2005, distinguished
R v Harper [2002] QCA 107, CA No 17 of 2002, 19 March 2002, distinguished
R v Hatch [1999] QCA 495, CA No 320 of 1999, 29 November 1999, distinguished
R v Hill [1995] QCA 450, distinguished
R v Keevers; R v Filewood [2004] QCA 207, CA No 90 of 2004, 18 June 2004, distinguished
R v Marsh [1995] QCA 99, distinguished
R v Murray [2005] QCA 188, CA No 43 of 2005, 3 June 2005, distinguished

COUNSEL:

R East for the applicant/appellant
D R MacKenzie for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA:  On the 9th of November 2006, LU pleaded guilty to one count of unlawful and indecent assault, and one of unlawful assault doing bodily harm.  Those offences were committed on 25 October 1997, and the victim was his then 16 year old stepdaughter.  Mr LU was sentenced to six years imprisonment for each offence, to be served concurrently, and the learned sentencing Judge fixed a parole eligibility date of 8 November 2008. 

Mr LU has applied for leave to appeal against each sentence contending each is manifestly excessive. Both those offences provided for in s 337(1)(a) and s 339(1) of the Criminal Code respectively, carried a maximum of 10 years imprisonment as at October 1997.

The circumstances of the two offences were that, as at 24 October 1997, Mr LU had been in a de facto relationship with the complainant's mother for a period of approximately 11 years, and the family, then consisting of Mr LU, the complainant's mother, the complainant and her three brothers, were all staying at a…