Site Logo

Lu v The Queen; Huang v The Queen [2021] NSWCCA 68

The offenders were convicted following pleas of guilty to attempting to possess a commercial quantity of a border controlled drug contrary to sections 11.1.(1) and 307.5(1) of the Commonwealth Criminal Code. Offence related to 33.572 kilograms of pure methamphetamine. Original sentence imposed 10 years imprisonment with a 6 year non-parole period. Offenders appealed on the ground that sentencing judge failed to take into account the utilitarian value of their pleas of guilty.

Guilty Plea: Sentence was handed down prior to decision in Xiao.  Sentencing judge referred to DPP (Cth) v Gow which was supported in Xiao v R. Sentencing decision for present offenders differs from other appeals which rely on Xiao error. Sentencing error has been demonstrated on what may be a relatively technical basis. Sentencing judge calculated 25% discount by reference to mixture of objective and subjective factors. In effect, sentencing judge included under one quantified umbrella factors which bore upon guilty plea and contrition. This is not a case were sentencing judge excluded utilitarian value of pleas from consideration. It is appropriate to retain a 25% discount to reflect utilitarian plea of guilty.

Parity: It is appropriate to pass the same sentence of imprisonment for each offender. Although, as sentencing judge found, there are shades of difference between the two, the appropriate sentencing outcome ought see imposition of the same sentence.

Leave to appeal granted. Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

© 2023 The National Judicial College of Australia (NJCA). Powered by

Privacy Policy|Terms and Conditions