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Chung v R

Chung v R

Case [2017] NSWCCA 48 24 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chung v R [2017] NSWCCA 48
Hearing dates: 31 October 2016
Decision date: 24 March 2017
Before: Beazley P;
R A Hulme J;
Bellew J
Decision:
(1)   Refuse leave to appeal against conviction.

(2)   Grant leave to appeal against sentence.
(3)   Dismiss the appeal against sentence.
Catchwords:
CRIMINAL LAW – application for leave to appeal against conviction – appeal on ground that verdict of the jury was unreasonable and cannot be supported having regard to the evidence – applicant convicted under Crimes Act 1900 (NSW), s 112(2) of breaking and entering a dwelling-house and committing a serious indictable offence in circumstances of aggravation – whether it had been established that the applicant had broken and entered – inconsistencies in complainant’s evidence – whether complainant was an unreliable witness whose evidence should not have been accepted – whether leave to appeal should be granted

CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred in finding that the offending was aggravated by being committed in the home of the victim under Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb) – relationship between Crimes Act 1900 (NSW), s 112(2) and Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb) – whether sentencing judge double counted fact that offending was committed in the victim’s home – whether it is an element of s 112(2) that premises which are the subject of offending are those of the victim

CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred in finding that offending was in the middle of the range of objective seriousness – whether factual findings support conclusion reached by sentencing judge – sentencing judge found that applicant broke into premises in possession of a knife, kicked the victim in the stomach, produced the knife and assaulted the victim – when finding of objective seriousness of particular offending by sentencing judge will be set aside

CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred in not quantifying the discount he gave to the applicant on account of delay in the proceedings and the applicant being on bail – whether sentencing judge obliged to specify a discount
CRIMINAL LAW – application for leave to appeal against sentence – whether sentence manifestly excessive – whether sentence unreasonably or plainly unjust – relevance of sentencing statistics and sentences in cases involving comparable offending – relevance of fact that applicant did not plead guilty
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Ali v R [2010] NSWCCA 35
Atai v R [2014] NSWCCA 210
Baines v R [2016] NSWCCA 132
Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43
Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188
Jonson v R [2016] NSWCCA 286
Markarian v The Queen (2005) 228 CLR 257;

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 Chung v R

Details

AGLC: Chung v R [2017] NSWCCA 48
Case: [2017] NSWCCA 48
Decision Date: 24 March 2017

CaseChat Overview and Summary

The applicant, Chung, sought leave to appeal against both his conviction and sentence following a trial in which he was found guilty of breaking and entering a dwelling-house and committing a serious indictable offence in circumstances of aggravation, contrary to section 112(2) of the Crimes Act 1900 (NSW). The applicant contended that the jury’s verdict was unreasonable and could not be supported by the evidence, particularly given the inconsistencies in the complainant’s testimony and the possibility that she was an unreliable witness. The applicant also argued that the sentence was manifestly excessive and that the sentencing judge had erred in various respects, including by double counting certain factors and failing to quantify the discount given for delay and the applicant’s status as a person on bail.

The primary legal issues before the court were whether the jury’s verdict was unreasonable and unsupported by the evidence, and whether the sentence was manifestly excessive or unjust. In relation to the conviction, the court examined the consistency and reliability of the complainant’s evidence and whether it was open to the jury to find the applicant guilty beyond reasonable doubt. Regarding the sentence, the court considered whether the sentencing judge had erred in applying the relevant statutory provisions, whether the objective seriousness of the offending had been properly assessed, and whether the sentence was manifestly excessive or plainly unjust. The court also considered the relevance of sentencing statistics and the principle that sentences should not be set aside lightly.

The court concluded that the jury’s verdict was open to it on the evidence, despite the inconsistencies in the complainant’s testimony. The court found that the complainant’s evidence was not inherently unreliable and that it was open to the jury to accept her account as true. The court also held that the sentencing judge had not erred in applying the relevant statutory provisions and that the sentence was not manifestly excessive or plainly unjust. The court found that the sentencing judge had properly assessed the objective seriousness of the offending and had appropriately considered the factors that warranted a discount in the sentence. The court found that the sentence was within the range of appropriate penalties for the offending and that the sentencing judge was not obliged to quantify the discount given for delay and the applicant’s status as a person on bail.

The application for leave to appeal against conviction and sentence was dismissed.

Orders