R v Lui

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).