Say Tsuong Lu v The Queen

IN THE SUPREME COURT OF NEW ZEALAND

SC 54/2011
[2011] NZSC 83

SAY TSUONG LU

THE QUEEN

Court: Elias CJ, Blanchard and William Young JJ

Counsel: JJ Brandts-Giesen for Applicant
K A L Bicknell for Crown

Judgment: 10 August 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

The proposed appeal is against dismissal by the Court of Appeal of an appeal against sentence.[1] It concerns a minimum term of imprisonment (seven years) imposed in relation to a 12 year sentence which itself is not now challenged. The offence was supply of methamphetamine. The percentage of the sentence ordered to be served without parole is said to be out of line with comparable cases and to involve double counting of aggravating features, but the former is not really demonstrated and the revisiting of such features is inevitable in the separate exercise of fixing of an MPI, as the sentencing court is concerned that the point of eligibility for actual release does not arrive until the period of incarceration adequately reflects the criminality.
[1] Lu v R [2011] NZCA 151.
The second proposed ground is disparity with the sentence of a co-offender who received eight years with no MPI. However, the difference is explained by the fact that the present applicant was a supplier and the co-offender simply a “mule” who was motivated by her addiction and received little of the profits. She had also pleaded guilty – unlike the applicant who was found guilty.
No issue of public or general importance arises and there is no appearance of any miscarriage of justice.

Solicitors:
Brandts-Giesen McCormick, Rangiora for Applicant
Crown Law Office, Wellington

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with an application for leave to appeal from Say Tsuong Lu against the decision of the Court of Appeal which dismissed an appeal against his sentence. The appeal in question concerned the minimum term of imprisonment imposed by the sentencing court, which was set at seven years of a total 12-year sentence for the offence of supplying methamphetamine. The applicant argued that the percentage of the sentence ordered to be served without parole was out of line with comparable cases and that there was double counting of aggravating features. However, the court found that the former argument was not substantiated, and the latter was a natural part of the process of setting the minimum term of imprisonment. The court also considered the disparity between the sentence of the applicant and a co-offender, who received an eight-year sentence with no minimum term of imprisonment. The court found that the difference in sentences was justified due to the different roles and circumstances of the two offenders.

The legal issues before the court were whether the minimum term of imprisonment imposed was out of line with comparable cases and whether there was double counting of aggravating features. The court also considered the issue of disparity with the sentence of a co-offender. The court found that the minimum term of imprisonment was not out of line with comparable cases and that the process of setting the minimum term of imprisonment inevitably involved revisiting the aggravating features. The court also found that the difference in sentences between the applicant and the co-offender was justified due to their different roles and circumstances.

The Supreme Court of New Zealand dismissed the application for leave to appeal. The court found that no issue of public or general importance arose and that there was no appearance of any miscarriage of justice. The court also found that the Court of Appeal's decision was correct and that there were no grounds for allowing an appeal. The court's decision was based on a careful consideration of the legal issues and the circumstances of the case.

The Supreme Court of New Zealand dismissed the application for leave to appeal and affirmed the decision of the Court of Appeal. The court found that the minimum term of imprisonment imposed by the sentencing court was not out of line with comparable cases and that the process of setting the minimum term of imprisonment inevitably involved revisiting the aggravating features. The court also found that the difference in sentences between the applicant and the co-offender was justified due to their different roles and circumstances. The court's decision was based on a careful consideration of the legal issues and the circumstances of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established