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 JDecision: (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 guiltyLegislation 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;
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- Chung v R [2017] NSWCCA 48
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- [2017] NSWCCA 48
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CaseChat Overview and Summary
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.
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