R v Luu - [2018] QCA 281

SUPREME COURT OF QUEENSLAND

CITATION:

R v Luu [2018] QCA 281

PARTIES:

R
v
LUU, Catrina Hong
(applicant)

FILE NO/S:

CA No 78 of 2018
SC No 1195 of 2017
SC No 131 of 2018
SC No 376 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 29 March 2018 (Applegarth J)

DELIVERED ON:

19 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2018

JUDGE:

Sofronoff P and Fraser JA and Douglas J

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to drug trafficking and fraud – where the applicant was sentenced to 11 years imprisonment with a parole eligibility date set at five and a half years – where the sentencing judge reduced the drug trafficking sentence to below 10 years because of the applicant’s guilty plea – where the sentencing judge did not rely on the applicant’s guilty plea when setting the parole eligibility date – whether the sentencing judge ought to have reduced the applicant’s parole eligibility date as a result of her guilty plea – whether to do so would have given the applicant a “double-benefit”

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Carlisle [2017] QCA 258, cited
R v MCW[2018] QCA 241, cited
R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22, applied

COUNSEL:

J R Hunter QC for the applicant
M T Whitbread for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons for judgment of Douglas J and the order his Honour proposes.
FRASER JA: I agree with the reasons for judgment of Douglas J and the order proposed by his Honour.
DOUGLAS J: The issue argued by the applicant in this application for leave to appeal against the sentence imposed on her for drug trafficking and fraud is whether the learned sentencing judge erred in concluding, after reducing the head sentences he proposed to impose to take into account her guilty pleas, that she should not obtain “the double benefit of having a parole eligibility date at the usual one-third period.”[1]
[1]AB 48/45-46.
His Honour went on to say that, to do so, would involve an error. He then referred to the decision in R v Tran; Ex parte Attorney-General (Qld).[2] He concluded by saying:
“Instead, I should arrive at an appropriate parole eligibility date, noting that had you been sentenced to a term of 10 years imprisonment for your trafficking you would have been required to serve 80 per cent of that sentence, to which would be added some proportion of the two year or three year sentence for forgery.”[3]
[2][2018] QCA 22.
[3]AB 48/47-AB49/2.
Before I proceed to discuss that submission it is…

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 Luu

Details

AGLC: R v Luu [2018] QCA 281
Case: [2018] QCA 281
Decision Date: 19 October 2018

CaseChat Overview and Summary

The appellant was convicted of drug trafficking and fraud and sentenced to 11 years imprisonment with a parole eligibility date set at five and a half years. The appellant pleaded guilty to trafficking in dangerous drugs and possessing property suspected of being used in connection with the commission of a drug offence. She also pleaded guilty to one count of attempted fraud and three counts of fraud in respect of obtaining loans from ANZ by falsifying documents. The court had to decide whether the sentencing judge was correct in not reducing the parole eligibility date as a result of the appellant’s guilty plea. The appellant argued that the sentencing judge ought to have reduced the parole eligibility date as a result of her guilty plea. The court found that the sentencing judge did not err in not reducing the parole eligibility date. The court found that the sentencing judge was entitled to take into account the appellant’s guilty plea in determining the sentence but not in setting the parole eligibility date. The court found that to do so would have given the appellant a “double-benefit”. The appellant’s application for leave to appeal was dismissed.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Before I proceed to discuss that submission it is necessary to deal with the nature of the applicant’s offending.The evidence related to the applicant’s offending The applicant was convicted on two indictments. The first charged her with trafficking in dangerous drugs and with six associated possession charges treated as particulars of the trafficking offence. The drugs in question were heroin, cocaine, methylamphetamine, MDMA and cannabis. I shall detail the quantities later. She was also in possession of a large sum in cash. She pleaded guilty to those offences and to one summary offence of possessing property suspected of having been used in connection with the commission of a drug offence. She pleaded guilty as well to one count of attempted fraud and three counts of fraud to the value of $30,000 or more arising from her obtaining loans from Australia and New Zealand Banking Group Limited (“ANZ”) to purchase properties from the proceeds of her drug trafficking. She did that by falsifying documents which she provided to ANZ in order to secure loans totalling $1,594,702. The drug trafficking occurred over a period of about three years and 10 months from January 2012 to 27 October 2015. During that time she allowed her home to be used to warehouse drugs and other drug related items. There was no allegation that she was engaged directly in the supply of drugs. It appears that her brother may have been a drug supplier but he has not been charged. He may not still be in the jurisdiction. Surveillance by police revealed that another person collected over seven and a half kilograms of cannabis from the applicant’s residence. A subsequent police search of her residence located commercial quantities of a variety of dangerous drugs, in a locked room and inside a van located in the garage, with a total value of between $484,428 and $1,848,342 depending upon how it was sold. The applicant did not cooperate with police at that stage. She provided a number of incorrect PIN codes for the locked room in her residence resulting in the police using force to enter the room. The following schedule 1 drugs with a total value of between $199,841 and $967,092, were located within that room:(a)cocaine - 56.3 grams pure - value between $66,600 and $88,800;(b)3,4-methlenedioxymethamphetamine - 144.875 grams pure - value between $30,655 and $61,311;(c)methylamphetamine - 275.404 grams pure - value between $83,040 and $775,044;(d)heroin - 67.8 grams pure - value between $19,536 and $42,737. Four suitcases were found inside a van in the garage, inside which were found 66.5 kilograms of cannabis, a schedule 2 drug, valued between $284,587 and $881,250. The applicant informed police that she did not know who the last person to drive the van was and suggested that it may have been her mother. The applicant’s DNA was later located on the van steering wheel, a water bottle in the centre console, and the door. A total of $1,792,925 cash was also located within the residence in the following areas:(a)in five locations within the locked room - $1,646,355;(b)the applicant’s bedroom - $110,450;(c)the applicant’s handbag in her bedroom - $1,950;(d)the applicant’s handbag in the lounge room - $31,620; and(e)the amounts of $450 and $100 in other bedrooms.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Luu [2018] QCA 281
PARTIES:	R v LUU, Catrina Hong (applicant)
FILE NO/S:	CA No 78 of 2018 SC No 1195 of 2017 SC No 131 of 2018 SC No 376 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 29 March 2018 (Applegarth J)
DELIVERED ON:	19 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2018
JUDGE:	Sofronoff P and Fraser JA and Douglas J
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to drug trafficking and fraud – where the applicant was sentenced to 11 years imprisonment with a parole eligibility date set at five and a half years – where the sentencing judge reduced the drug trafficking sentence to below 10 years because of the applicant’s guilty plea – where the sentencing judge did not rely on the applicant’s guilty plea when setting the parole eligibility date – whether the sentencing judge ought to have reduced the applicant’s parole eligibility date as a result of her guilty plea – whether to do so would have given the applicant a “double-benefit” Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Carlisle [2017] QCA 258, cited R v MCW[2018] QCA 241, cited R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22, applied
COUNSEL:	J R Hunter QC for the applicant M T Whitbread for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent