R v Wu - [2005] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 229 of 2004

THE QUEEN

YUNAN WU

---

JUDGES:	WINNEKE, P., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2005
DATE OF JUDGMENT:	9 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 18

---

Criminal law - Sentencing - Judge imposing "straight sentence" because of assumed executive action - Error - Re-sentenced to term with fixing of non-parole period.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Slades & Parsons

WINNEKE, P.:

The appellant, whom I shall call "Wu", travelled from Sydney to Melbourne on a date prior to 17 May 2004. He either carried with him or acquired here a number of false documents, which included:

• a document falsely identifying him as "Tan Tu" of 4 Kent Street, Lalor;
•a Victorian driver's licence or "learner's permit" in the name of Tan Tu, which incorporated his photograph;

• a Holmesglen TAFE student card also incorporating his photograph;
•a bill from an organisation called "Power Direct"; I assume that is an electricity organisation.

These documents satisfied what is described as the "100 point check" required to create a new bank account. "Tan Tu" was a false identity. He also had in his possession the following false documents:
•A Certificate of Registration of Business Name for an entity called "Ozlem Kebab Co."
•A Certificate of Registration of Business Name for an entity called "Yada International Trading".

The idea was to open bank accounts in false names in order to negotiate a stolen cheque in the sum of more than $107,000 - a cheque which had been stolen in Sydney and was payable to the "Ozlem Kebab Co." The appellant's claim was that he had been provided with the cheque by criminal elements in Sydney to whom he then owed gambling debts.

On 17 May 2004, the appellant attended the Box Hill branch of the ANZ Bank. He used the false documentation for the purposes of opening bank accounts at the ANZ Bank in the names of "Tan Tu" and "Yada International Trading". On the same day he used the same false documentation to open accounts in the names of "Tan Tu" and "Yada International Trading" at the Box Hill branch of the Westpac Bank. These events constituted counts 1 to 4 inclusive on the presentment.

On 19 May 2004, the appellant carried the same false documentation to the Swanston Street branch of the ANZ Bank. There he used the documents to open an account in the name of "Tan Tu", trading as "Ozlem Kebab Co." He then used the same false documents to open an account at the Westpac Bank Elizabeth Street Branch in the name of "Tan Tu, trading as "Ozlem Kebab Co." These were counts 5 and 6. On the same day he used the same false documents to open a bank account at the same Westpac branch in the name of…

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 Wu

Details

AGLC: R v Wu [2005] VSCA 18
Case: [2005] VSCA 18
Decision Date: 9 February 2005

CaseChat Overview and Summary

In the case of R v Wu, the defendant was found guilty of certain criminal charges and the matter was before the court for sentencing. The dispute involved the appropriate sentence to be imposed on the defendant, considering the nature of the crimes committed and the circumstances surrounding them. The court was required to determine the appropriate term of imprisonment for the defendant, along with the non-parole period.

The legal issue before the court was whether the original sentence imposed by the judge was correct or if it contained an error that warranted reconsideration. Specifically, the court had to examine whether the judge had properly exercised his or her discretion in imposing a "straight sentence" and if there was any assumption of executive action that influenced the sentencing decision. Additionally, the court had to determine if the non-parole period was properly fixed.

The court found that there was an error in the original sentencing process, as the judge had imposed a "straight sentence" based on an assumption of executive action. Consequently, the court decided to re-sentence the defendant to an appropriate term of imprisonment, ensuring that the non-parole period was properly fixed. The court emphasised the importance of correctly exercising sentencing discretion and avoiding any assumptions of executive action that may influence the outcome. The final orders of the court were to re-sentence the defendant with a specified term of imprisonment and a fixed non-parole period.

Orders