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Wu v The Queen

Wu v The Queen

Case [2016] NSWCCA 96 27 May 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wu v R [2016] NSWCCA 96
Hearing dates: 14 April 2016
Decision date: 27 May 2016
Before: Ward JA at [1];
Price J at [83];
Adamson J at [84]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: CRIMINAL LAW – sentence appeal – market manipulation and dishonesty offences – where offender assisted authorities in investigation of co-offenders – whether sentencing judge erred in determination of discount for assistance – whether error in comparative severity of sentences for offences – whether extent of accumulation reflected failure to apply principle of totality – leave to appeal granted and appeal dismissed
Legislation Cited: Corporations Act 2001 (Cth), ss 1041A, 1311(1), 184(2)(a)
Crimes Act 1914 (Cth), ss 16A(2)(g), 19AC, 20(1)(b)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code Act 1995 (Cth), s11.5
Cases Cited: AB v R [2013] NSWCCA 333
C v R [2013] NSWCCA 81; (2013) 229 A Crim R 233
Chan, Lo & Nguyen v R [2010] NSWCCA 153
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hutchinson v R [2014] NSWCCA 317
Isaac v R [2012] NSWCCA 195
Ma v R [2010] NSWCCA 320
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Cartwright (1989) 17 NSWLR 243
R v Charman [2007] NSWSC 1177
R v Dulhunty; R v PR [2015] NSWSC 1747
R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63
R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
R v El Hani [2004] NSWCCA 162
R v Gallagher (1991) 23 NSWLR 220
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
R v Wheeler [2000] NSWCCA 34
R v Wu [2015] NSWSC 1877
SL v R [2015] NSWCCA 30
Z v R [2014] NSWCCA 323
Category: Principal judgment
Parties: Ge Wu (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC with S Buchen (Applicant)
L Crowley (Respondent)
Solicitors:
Watsons Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/00235651
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2015] NSWSC 1877

Date of Decision:

18 December 2015

Before:

Bellew J

File Number(s):

2014/00235651; 2014/00147710

Judgment

WARD JA: The applicant, Mr Wu, pleaded guilty on 19 May 2015 in the Local Court to two counts of conspiracy to engage in market manipulation contrary to ss 1041A and 1311(1) of the Corporations Act 2001 (Cth) and s 11.5 of the Criminal Code Act 1995 (Cth) (together, “the market manipulation offences”) and one count of dishonestly using his position as a director, contrary to ss 184(2)(a) and 1311(1) of the Corporations Act (“the dishonesty offence”). He was committed for sentence to the Supreme…

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 The Queen

Details

AGLC: Wu v The Queen [2016] NSWCCA 96
Case: [2016] NSWCCA 96
Decision Date: 27 May 2016

CaseChat Overview and Summary

In Wu v The Queen, the appellant, Mr Wu, appealed against the sentence imposed by the primary judge. Mr Wu had been convicted of various market manipulation and dishonesty offences. The Court of Appeal was required to determine whether the sentencing judge had erred in the discount provided to Mr Wu for his assistance to the authorities in investigating his co-offenders, whether there was an error in the comparative severity of sentences for the offences, and whether the extent of the accumulation reflected a failure to apply the principle of totality. The appeal was heard by the Court of Appeal, which granted leave to appeal but ultimately dismissed the appeal.

The court considered the extent to which the primary judge had erred in determining the discount for Mr Wu's assistance. It found that the sentencing judge had applied the correct principles in determining the discount for Mr Wu's assistance to the authorities and that the discount provided was appropriate given the circumstances of the case. The court also examined the comparative severity of sentences for the offences and concluded that the sentencing judge had appropriately considered the factors relevant to the comparative severity of the sentences. Finally, the court considered whether the extent of accumulation reflected a failure to apply the principle of totality. It found that the sentencing judge had appropriately applied the principle of totality and that the sentence imposed was proportionate to the seriousness of the offences committed by Mr Wu.

Orders