Wu v R

Case [2011] NSWCCA 102 4 May 2011

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Court of Criminal Appeal

New South Wales

Case Title: Wu v R

Medium Neutral Citation: [2011] NSWCCA 102

Hearing Date(s): 8 February 2011

Decision Date: 04 May 2011

Before: Giles JA at [1], RS Hulme J at [61], Adams J at [62]

Decision:
(1) Grant leave to appeal.
(2) Appeal allowed.
(3) Set aside the sentence imposed for the Collectors Tavern robbery and in lieu thereof sentence the applicant to imprisonment for a non-parole period of 3 years commencing on 25 June 2009 with a balance of term of 1 year and 6 months.
(4) Set aside the sentence imposed for the Buckland Hotel robbery and in lieu thereof sentence the applicant to imprisonment for a non-parole period of 6 months commencing on 25 December 2011 with a balance of term of 2 years and 6 months.

Catchwords: CRIMINAL LAW - Sentence appeal - sentencing for multiple offences in 2010 - had been sentenced in 2004 for offence part of same course of criminal conduct - no prosecutorial delay - effect of totality principles on 2010 sentencing - failure to volunteer commission of offences does not deprive offender of totality considerations - totality principles applicable although delay not caused by interstate element or conduct of criminal justice system - were not applied - error in sentencing principle - offender re-sentenced

Legislation Cited: Crimes Act 1900

Cases Cited: Clements v R (1993) 68 A Crim R 167;
Dair v Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385;
Dyer v R [2006] NSWCCA 274;
Jackson v R (1988) 104 A Crim R 196;
Mill v The Queen (1988) 166 CLR 59;
R v Abookahled (CCA, 9 May 1991, unreported)
R v Kay [2004] NSWCCA 130;
R v Knott [2007] SASC 74; (2007) 169 A Crim R 291;
R v Bruce (1998) 71 SASR 536;
R v Nahle [2007] NSWCCA 40;
R v Shore (1992) 66 A Crim R 37;
R v Shorten [2005] NSWCCA 106;
R v Todd (1982) 2 NSWLR 517;
R v Virgona [2004] NSWCCA 415;
R v Webster [2005] NSWCCA 110;
Thorpe v R [2010] NSWCCA 261.

Category: Principal judgment

Parties: Matthew Wu - Applicant
Crown - Respondent

Representation

- Counsel: Counsel:
K H Averre - Applicant
J Dwyer - Respondent Crown

- Solicitors: Solicitors:
Australian Criminal Law Specialists Pty Ltd - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): CCA 2009/48490

Decision Under Appeal

- Before: Ashford DCJ

- Court File Number(s): 2009/48490

JUDGMENT

GILES JA: On 19 February 2010 the applicant was found guilty after trial of the offences of aggravated armed robbery ( Crimes Act 1900, s 97(2)) and arson ( Crimes Act , s 195(1)(b)). On 22 February 2010, the day fixed for commencement of a further trial, he pleaded guilty to a third offence of armed robbery ( Crimes Act , s 97(1)). I will call the offences counts 1, 2 and 3 respectively.
The…

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 Wu v R

Details

AGLC: Wu v R [2011] NSWCCA 102
Case: [2011] NSWCCA 102
Decision Date: 04 May 2011

CaseChat Overview and Summary

Wu appealed against his sentence for multiple offences committed in 2010, following a previous sentence for an offence in 2004 that was part of the same course of criminal conduct. The Court of Appeal was tasked with determining whether the trial judge erred in failing to apply the principles of totality when sentencing Wu for the 2010 offences. The appeal hinged on whether the delay between the 2004 and 2010 sentences warranted the application of totality principles, even though the delay was not caused by prosecutorial or interstate factors. The court also considered whether the offender's failure to volunteer the commission of the earlier offences precluded him from benefiting from the totality principles.

The Court of Appeal held that the trial judge's failure to apply the principles of totality constituted an error in sentencing principle. It was emphasised that the delay between the sentences did not need to be caused by prosecutorial delay or interstate factors for the principles of totality to apply. The court concluded that the offender's failure to volunteer the commission of the earlier offences did not deprive him of the benefits of the totality principles. The Court of Appeal therefore quashed the original sentences and re-sentenced Wu, directing the trial judge to re-evaluate the sentences in light of the totality principles.

Orders