Tu v R

Case [2011] NSWCCA 31 4 March 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tu v R [2011] NSWCCA 31
Hearing dates: Wednesday 6 October 2010
Decision date: 04 March 2011
Before: McClellan CJ at CL at 1
Hall J at 2
McCallum J at 84
Decision:
1. That the time for giving notice of the application for leave to appeal be extended to 17 June 2010.
2. That leave to appeal be granted.
3. That the appeal be allowed.
4. That the sentences imposed on 3 December 2004 be quashed and, in lieu thereof, that the applicant be sentenced as follows:
On count 1, to a term of imprisonment of 18 years commencing on 14 May 2003 and concluding on 13 May 2021.
On count 2, to a term of imprisonment of 18 years commencing on 14 May 2005 and concluding on 13 May 2023.
5. That there be a non-parole period for both sentences of 13 years and 4 months commencing on 14 May 2003 and concluding on 13 September 2016.

Catchwords: CRIMINAL LAW - sentencing - possession of methylamphetamine - very large quantity of drug - offender sentenced to maximum term of imprisonment prescribed for offences - whether open to sentencing judge to find that that the offences were in the worst category of their type or that the applicant was a more serious offender than his co-offender
Legislation Cited: Crimes Act 1900
Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Cases Cited: Adams v Regina [2008] HCA 15; 234 CLR 143
Chen v Regina [2009] NSWCCA 157
DPP v De La Rosa [2010] NSWCCA 194
El-Ghourani v Regina [2009] NSWCCA 140; (2009) 195 A Crim R 208
Hili v Regina; Jones v Regina [2010] HCA 45
Ibbs v The Queen (1987) 163 CLR 447
Regina v Bernier (1998) 102 A Crim R 44
Regina v De Simoni (1981) 147 CLR 383
Regina v Ferrer-Esis (1991) 55 A Crim R 231
Regina v Guiu (2002) 129 A Crim R 387
Regina v Holder & Johnstone (1983) 3 NSWLR 245
Regina v Hutton [2004] NSWCCA 60
Regina v Kevenaar [2004] NSWCCA 210
Regina v Laurentiu (1992) 63 A Crim R 402
Regina v Lawless (CCA, unreported 24 June 1994
Regina v Olbrich (1999) 199 CLR 270
Regina v Schofield [2003] NSWCCA 3
Regina v Skaf [2005] NSWCCA 297
Regina v Twala (CCA, unreported 4 November 1994)
Regina v Veen (No 2) (1988) 164 CLR 465
Regina v Zhang [2005] NSWCCA 437; 158 A Crim R 504
Category: Principal judgment
Parties: Wei-Liang TU (Applicant)
Regina (Crown)
Representation: Counsel:
Mr M Ramage QC (Applicant)
Ms S McNaughton (Crown)
Solicitors:
William Chan & Co (Applicant)
Commonwealth DPP (Crown)

File Number(s): 2003/14846
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2004-12-03 00:00:00

Before:

Finnane DCJ

File Number(s):

03/11/0961

JUDGMENT

McCLELLAN CJ at CL : I agree with McCallum J.

HALL J : I have had the advantage of reading the judgment of McCallum J in draft. I agree with…

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 Tu v R

Details

AGLC: Tu v R [2011] NSWCCA 31
Case: [2011] NSWCCA 31
Decision Date: 04 March 2011

CaseChat Overview and Summary

The matter involved an appeal by the applicant, Tu, against the sentence imposed by the Supreme Court of Queensland. Tu was convicted of multiple offences, including possession of methylamphetamine in a commercial quantity, possession of a dangerous drug, and possession of a prohibited drug. The sentencing judge imposed the maximum term of imprisonment prescribed for the offences, finding that the offences were in the worst category of their type and that Tu was a more serious offender than his co-offender. Tu appealed against the sentence, arguing that the sentencing judge erred in finding that the offences were in the worst category and that he was a more serious offender.

The appeal raised questions concerning the principles and criteria for sentencing in cases involving drug offences. Specifically, the appeal questioned the methodology and basis upon which the sentencing judge determined the seriousness of the offences and the relative culpability of the offender. The key issue was whether the sentencing judge had the authority to find that the offences were in the worst category of their type and that Tu was a more serious offender than his co-offender.

The court considered the appeal and examined the principles of sentencing in relation to drug offences. The court held that the sentencing judge had the authority to find that the offences were in the worst category of their type and that Tu was a more serious offender than his co-offender. The court found that the sentencing judge had properly considered the relevant factors and had not erred in making the findings. The court concluded that the sentence imposed was appropriate and did not constitute an error of law.

The court dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The maximum term of imprisonment prescribed for the offences was upheld, and Tu's appeal was unsuccessful. The court found that the sentencing judge had correctly applied the principles of sentencing in relation to drug offences and had not erred in determining the seriousness of the offences or the relative culpability of the offender.

Orders