Lu v Regina

Citation: Lu v Regina [2008] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 11 November 2008
Judges: Beazley JA, Hislop J, Harrison J

Background

The appellant pleaded guilty to manslaughter on the first day of his murder trial. The offence arose from a revenge attack in which he and another person chased the victim. The appellant carried an iron bar; his companion stabbed the victim fatally. The sentencing judge accepted that the appellant had not known his companion was armed with a knife, but had intended to assault the victim and cause him actual bodily harm.

The appellant was sentenced by Price J in the Supreme Court to a total of 9 years 4 months imprisonment, with a non-parole period of 6 years 2 months. At the time of sentencing, he was already serving a sentence of 4 years 8 months (non-parole period: 3 years 7 months) imposed for supply of a prohibited drug. Price J effectively commenced the manslaughter sentence at the expiry of the non-parole period for the drug offence, rather than making the two sentences partially concurrent.

The appellant sought leave to appeal on two grounds: that the sentence was excessive, and that the sentencing judge erred by refusing to partially accumulate the manslaughter sentence on the pre-existing drug sentence.

Legal Issues

• Whether the sentence of 9 years 4 months for manslaughter fell outside the appropriate discretionary range having regard to comparable cases and the appellant's personal circumstances.
• Whether Price J erred by declining to partially accumulate the manslaughter sentence on the earlier drug sentence, given the principles of totality in sentencing.

Decision

Ground 1: Sentence not excessive

The Court of Criminal Appeal confirmed that manslaughter carries a maximum of 25 years imprisonment and that the objective gravity of the offence can vary significantly between cases. Sentencing judges enjoy considerable latitude, and appellate courts do not intervene simply because a different sentence might have been imposed. The Court reviewed a range of comparable manslaughter sentences placed before it and concluded that the sentence imposed by Price J fell within the appropriate discretionary range.

The Court noted several relevant features: the attack was a premeditated act of personal revenge; the appellant had a lengthy criminal history spanning 15 years that included assault, drug and property offences; and his prospects for rehabilitation were poor. His contrition, remorse, and a 15 per cent discount for the utilitarian value of the guilty plea were factors in mitigation, but did not render the sentence excessive.

Ground 2: No error in declining partial accumulation

Price J had rejected the submission that the manslaughter and drug supply offences were sufficiently connected (through the appellant's heroin addiction) to warrant partial concurrency. The Court of Criminal Appeal agreed. The two offences were discrete and independent acts of criminality, and partial accumulation would not have adequately reflected their combined seriousness.

The Court also gave significant weight to the fact that the appellant committed the manslaughter while on bail and while serving a suspended sentence imposed by the Drug Court. That combination of conditional liberty is treated very seriously in NSW sentencing law. The Court applied the principle that betrayal of the opportunity for rehabilitation offered through bail or conditional release must weigh heavily against an offender. In all the circumstances, the refusal to partially accumulate was held to be a just and appropriate response to the totality of the appellant's criminality.

Orders Made

• Leave to appeal against sentence granted.
• Appeal dismissed.

Key Takeaways

• The Court of Criminal Appeal confirmed that manslaughter sentencing involves no fixed benchmark and that judges retain wide discretion; appellate intervention requires the sentence to fall outside an appropriate range, not merely to differ from what another judge might have imposed.
• A revenge attack involving an intention to assault and cause actual bodily harm, combined with a lengthy prior criminal history and poor rehabilitation prospects, placed this manslaughter offence at a level justifying a substantial custodial sentence.
• Where two offences represent discrete and independent acts of criminality, partial concurrency will not necessarily be appropriate simply because an offender can point to a common background feature such as drug addiction.
• Committing a serious offence while on bail and while subject to a suspended sentence is treated as a significant aggravating factor in NSW; the principle, applied from cases including R v WHS, R v Richards, and R v Tran, holds that betrayal of conditional liberty weighs heavily in the sentencing calculus.
• In applying the totality principle, the relevant question is whether the overall sentence structure appropriately reflects the total criminality of the offender's conduct; accumulation or partial accumulation is not automatic where separate offences are involved.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(i)

Cases
- Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
- Johnson v R [2004] HCA 15; (2004) 205 ALR 346
- Lu v R [2007] NSWCCA 74
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v R [1988] HCA 70; (1988) 166 CLR 59
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- R v Avakian [2003] NSWSC 1042
- R v Buddle [2005] NSWCCA 82
- R v Diab [2003] NSWSC 978; [2005] NSWCCA 64
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Hoang [2004] NSWSC 205
- R v Hung Duc Dang [2001] NSWCCA 321
- R v Lewis [1999] NSWSC 131
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Newman (NSWSC, Barr J, 3 September 1997, unreported)
- R v Richards [1981] 2 NSWLR 464
- R v Tran [1999] NSWCCA 109
- R v WHS (NSWCCA, 27 March 1995, unreported)