R v Lui

Case [2009] QCA 366 1 December 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Lui [2009] QCA 366

PARTIES:

R
v
LUI, Errol Lawrence
(applicant)

FILE NO/S: CA No 211 of 2009
DC No 305 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

1 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2009

JUDGES: McMurdo P, Fraser JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
1.   Grant the application for leave to appeal and allow the appeal.

2.   Set aside the sentence imposed in the District Court.

3.   In respect of count 2 in the indictment (the first count of common assault), order that a conviction is recorded, sentence the applicant to a term of imprisonment of 12 months, and order that the imprisonment be suspended immediately for an operational period of two years, during which the applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.

4.   In respect of count 3 in the indictment (the second count of common assault), order that a conviction is recorded and that the applicant perform unpaid community services for 120 hours and comply with the requirements set out in s 103 of the Penalties and Sentences Act 1992 (Qld).

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where sentencing judge provided report to the Court of Appeal in accordance with s 671A Criminal Code 1899 (Qld) and r 94 Criminal Practice Rules 1999 (Qld) – where report revealed that the sentencing judge took into account the local prevalence of the offence committed by the applicant – where this issue was not raised with either party during sentencing – whether the applicant was denied procedural fairness – whether the Court should sentence afresh

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of two counts of common assault – where applicant wielded a large kitchen knife, but did not use it and did not intend to use it in the commission of the offence – where applicant has a young family, is in stable employment and made an early plea of guilty – where applicant’s criminal history contained few recent offences – where applicant sentenced to concurrent terms of 12 months imprisonment on each count, with parole release after serving three months – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 671A
Criminal Practice Rules 1999 (Qld), r 94
Penalties and Sentences Act 1992 (Qld), s 103, s 105, s 146

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Cui[2009] QCA 334, cited
R v Cunningham[2005] QCA 321, cited
R v Downie and…

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 Lui

Details

AGLC: R v Lui [2009] QCA 366
Case: [2009] QCA 366
Decision Date: 1 December 2009

CaseChat Overview and Summary

The matter before the court was an appeal against sentence by Lui, who had been convicted of two counts of common assault. The sentencing judge had imposed concurrent terms of 12 months imprisonment, with parole release after serving three months. Lui appealed on the basis that the sentence was manifestly excessive and that he had been denied procedural fairness due to the sentencing judge taking into account the local prevalence of the offence without notifying either party. The court was required to determine whether the grounds for interference with the sentence were established and, if so, what orders should be made.

The court examined the grounds for interference, starting with whether the sentence was manifestly excessive. It noted that Lui had wielded a large kitchen knife but did not use it and did not intend to use it in the commission of the offence. Lui had a young family, was in stable employment, and made an early plea of guilty. The court found that the sentence imposed was manifestly excessive given these mitigating factors. The court also considered whether Lui was denied procedural fairness. It noted that the sentencing judge provided a report to the Court of Appeal, which revealed that the sentencing judge had taken into account the local prevalence of the offence without notifying either party. The court found that this was a significant error and that Lui was denied procedural fairness.

The court granted the application for leave to appeal and allowed the appeal. It set aside the sentence imposed in the District Court and imposed a new sentence. For the first count of common assault, the court ordered that a conviction is recorded, and that Lui be sentenced to a term of imprisonment of 12 months, which was to be suspended immediately for an operational period of two years. During this period, Lui must not commit another offence punishable by imprisonment if he is to avoid being dealt with under section 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence. For the second count of common assault, the court ordered that a conviction is recorded and that Lui perform unpaid community services for 120 hours and comply with the requirements set out in section 103 of the Penalties and Sentences Act 1992 (Qld).

Orders

Orders of the court

1. Grant the application for leave to appeal and allow the appeal.

2. Set aside the sentence imposed in the District Court.

3. In respect of count 2 in the indictment (the first count of common assault), order that a conviction is recorded, sentence the applicant to a term of imprisonment of 12 months, and order that the imprisonment be suspended immediately for an operational period of two years, during which the applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.

4. In respect of count 3 in the indictment (the second count of common assault), order that a conviction is recorded and that the applicant perform unpaid community services for 120 hours and comply with the requirements set out in s 103 of the Penalties and Sentences Act 1992 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Lui [2009] QCA 366

Most Recent Citation

R v Coulton [2010] QCA 331

Cases citing this decision · 8 of 8 shown

Colley-Presnell v Commissioner of Police
[2023] QDC 63 Para 20

…sue and to produce statistics or other evidence to justify such a conclusion. A judge’s belief does not exonerate him from procedural fairness. [14][2009] QCA 366.…
RJCS v Queensland Police Service
[2023] QDC 18 Para 32

…ation of other relevant sentencing factors with reference to the circumstances of the offence and the offender’s personal circumstances.” [5] [2009] QCA 366. [6] At [18].…
Willich v Queensland Police Service
[2017] QDC 300 Para 1

…In R v Lui [2009] QCA 366 the Court of Appeal did not disturb the 12 month concurrent sentences for two counts of unlawful assaults against separate complainants. The 33 year old applicant ran towards the first complainant whilst holding a 30 cm kitchen knife. He shouted abuse and demanded that the complainant le…
Bulmer v Queensland Police Service
[2016] QDC 197 Para 1

…In R v Lui [2009] QCA 366, Fraser JA said at [15]:…
MH v Queensland police Service
[2015] QDC 124 Para 1

…In R v Lui [2009] QCA 366 the court was concerned with a situation where the sentencing judge had in a trial report noted that one of the reasons for the sentence imposed was because of the prevalence of such offences in the relevant suburb in Cairns. The appellant was unaware of judge’s view on this. The view wa…
R v Gordon
[2011] QCA 326 Para 1

…a particular offence can be relevant to the exercising of the sentencing discretion, but only where the statistics are established to be reliable. [6][2009] QCA 366. [7][1999] QCA 426.…
Gration v ONeill and Gration v Davis
[2011] NTSC 41

…oore v Materna (1996) 136 FLR 142; Parnell v Rigby (2008) 24 NTLR 1; Pepperill v Burgoyne [2005] NTSC 50; R v Downie & Dandy [1998] 2 VR 517; R v Lui [2009] QCA 366; R v Olbrich (1999) 199 CLR 270; Russell v Littman [2006] NTSC 50; Van Dang v Moore [2007] NTSC 68; referred to R v Story [1998] 1 VR 359 REPRESENTAT…
R v Coulton
[2010] QCA 331 Para 1

…parole release date within the period of an activated suspended sentence which forms part of a combined sentence of imprisonment. [1]C.f. R v Lui [2009] QCA 366 at [14] to [15]; see also R v Anderson [2010] QCA 158 at [27] to [31]. [2][2008] QCA 147 at [19] to [22]. [3][2009] 2 Qd R 455 at [13] to [14]. [4][2010]…

View all 8 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Lidbetter
[2009] QCA 6 Para 1

…find “some knife-wielding drunken lunatic attacking them and threatening to stab them.” After citing R v Hayes [2008] QCA 236 and R v Lidbetter [2009] QCA 6, the sentencing judge concluded that in view of the serious nature of the offences and in light of the applicant's personal circumstances, including his cr…
R v Hayes
[2008] QCA 236 Para 1

…be reduced should not expect to find “some knife-wielding drunken lunatic attacking them and threatening to stab them.” After citing R v Hayes [2008] QCA 236 and R v Lidbetter [2009] QCA 6, the sentencing judge concluded that in view of the serious nature of the offences and in light of the applicant's personal…
R v Kitson
[2008] QCA 86 Para 1

…ing judge failed to afford procedural fairness to the applicant. Many decisions, including R v Cunningham [2005] QCA 321 at pages 5 – 6, R v Kitson [2008] QCA 86 at [20] – [24], and cases there cited, support the proposition that, where a matter is considered by the sentencing judge to be an important considerat…
R v Kidner
[2005] QCA 430 Para 1

…reated as akin to an offence of wounding inflicted by the use of a knife, which is nearly inevitably punished by a custodial sentence: see R v Kidner [2005] QCA 430 at 3 and R v Cui [2009] QCA 334 at [17]. The production of a knife in the course of an assault, with the attendant shock and risk of serious injury a…
R v Cunningham
[2005] QCA 321 Para 1

…ondent was right to concede that the sentencing judge failed to afford procedural fairness to the applicant. Many decisions, including R v Cunningham [2005] QCA 321 at pages 5 – 6, R v Kitson [2008] QCA 86 at [20] – [24], and cases there cited, support the proposition that, where a matter is considered by the sen…
Markarian v The Queen
[2005] HCA 25 Para 1

…reasons for the imposition of a particular sentence should be expressed in the sentencing remarks: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, at paragraph [39], in which the point was made that accessible reasoning is necessary in the interests of victims, the parties, appeal courts and the pu…
R v Moss
[1999] QCA 426

…e. (b)taking into account unproven and irrelevant matters as set out in the learned sentencing judge's report: the applicant's counsel cited R v Moss [1999] QCA 426 in support of his argument that the sentencing judge erred in acting on a personal view that there was repeated vigilante conduct of the relevant kin…
Without which it seems no sentencing appeal is these days complete. Cf R v Lim and Ko
[1998] VSCA 54 Para 1

…nto account, it should be communicated to the parties so that they might have an opportunity to be heard about it. In R v Downie and Dandy [1998] 2 VR 517, the Victorian Court of Appeal allowed an appeal on the precise ground advanced by the applicant, that the sentencing judge had treated local prevalence…
QCA 430 at 3 and R v Cui
[2009] QCA 334 Para 1

…wounding inflicted by the use of a knife, which is nearly inevitably punished by a custodial sentence: see R v Kidner [2005] QCA 430 at 3 and R v Cui [2009] QCA 334 at [17]. The production of a knife in the course of an assault, with the attendant shock and risk of serious injury and even death, does justify emph…

Legislation cited in this decision · 2

Criminal Practice Rules 1999 (Qld)
94 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
103 2 mentions (from Para 1)

CITATION:	R v Lui [2009] QCA 366
PARTIES:	R v LUI, Errol Lawrence (applicant)
FILE NO/S:	CA No 211 of 2009 DC No 305 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	1 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2009
JUDGES:	McMurdo P, Fraser JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal and allow the appeal. 2. Set aside the sentence imposed in the District Court. 3. In respect of count 2 in the indictment (the first count of common assault), order that a conviction is recorded, sentence the applicant to a term of imprisonment of 12 months, and order that the imprisonment be suspended immediately for an operational period of two years, during which the applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence. 4. In respect of count 3 in the indictment (the second count of common assault), order that a conviction is recorded and that the applicant perform unpaid community services for 120 hours and comply with the requirements set out in s 103 of the Penalties and Sentences Act 1992 (Qld).
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where sentencing judge provided report to the Court of Appeal in accordance with s 671A Criminal Code 1899 (Qld) and r 94 Criminal Practice Rules 1999 (Qld) – where report revealed that the sentencing judge took into account the local prevalence of the offence committed by the applicant – where this issue was not raised with either party during sentencing – whether the applicant was denied procedural fairness – whether the Court should sentence afresh CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of two counts of common assault – where applicant wielded a large kitchen knife, but did not use it and did not intend to use it in the commission of the offence – where applicant has a young family, is in stable employment and made an early plea of guilty – where applicant’s criminal history contained few recent offences – where applicant sentenced to concurrent terms of 12 months imprisonment on each count, with parole release after serving three months – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 671A Criminal Practice Rules 1999 (Qld), r 94 Penalties and Sentences Act 1992 (Qld), s 103, s 105, s 146 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Cui[2009] QCA 334, cited R v Cunningham[2005] QCA 321, cited R v Downie and…