Chung v Regina - [2007] NSWCCA 146

New South Wales
Court of Criminal Appeal

CITATION: Chung v Regina [2007] NSWCCA 146

HEARING DATE(S): 22 May 2007

JUDGMENT DATE:
22 May 2007

JUDGMENT OF: McClellan CJ at CL at 1, 47; Hislop J at 4; Smart AJ at 5

DECISION: Leave to appeal against sentence granted. Appeal against sentence dismissed.

CATCHWORDS: Maliciously inflict grievous bodily harm with intent - victim rendered blind as a result of brutal attack - prior good character taken into account but grave criminality warranted stern sentences imposed.

CASES CITED: Melbourne v The Queen (1999) 198 CLR 1
R v Baker [2000] NSWCCA 185
R v Pearce (1998) 194 CLR 610
Ryan v The Queen (1999) 198 CLR 267

PARTIES: Patrick Chung v Regina

FILE NUMBER(S): CCA 2007/653

COUNSEL: (A) W Terracini SC
(C) Ms D Woodburne

SOLICITORS: (A) Greenfield Lawyers
(C) S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0363

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 19 July 2006

2007/653

McCLELLAN CJ at CL
HISLOP J
SMART AJ
Tuesday, 22 May 2007

Patrick CHUNG v Regina
JUDGMENT

1 McCLELLAN CJ at CL: It may be accepted that the breakdown of a relationship can lead to hurt and feelings of anger in one or both of the parties. Where a breakdown does occur adjustments will be necessary for all members of the family.

2 Notwithstanding the difficulties which the parties may experience, the law cannot allow a party to express their anger in physical violence. When, as happened in this case, that violence results in very significant injuries, a lengthy prison term is almost inevitable. A civilised society cannot tolerate its citizens expressing their feelings of anger and frustration through acts of violence upon others.

3 I agree with Smart AJ and the orders he proposes.

4 HISLOP J: I also agree with Smart AJ.

5 SMART AJ: The applicant, Patrick Chung, seeks leave to appeal against the sentences of imprisonment, imposed upon him after a trial on these offences:

(a) break and enter a dwelling house – fixed term of 4 years from 6 July 2006 to 5 July 2010 (maximum penalty – 25 years imprisonment), and

(b) maliciously inflict grievous bodily harm with intent – non-parole period of 10 years from 5 January 2007 to 4 January 2017 with a balance of term of 4 years expiring on 4 January 2021 (maximum penalty 25 years imprisonment) the offence attracts a standard non-parole period of 7 years imprisonment.

6 The total of the fixed term and non-parole period was 10½ years and the sentences overall totalled 14½ years.

7 Briefly put, the Crown case was that the applicant, knowing his ex-wife was at work and that a male friend of his wife, Mr Pan, was there forcefully broke into her apartment to gain access to his two daughters, in an uncontrollable rage savagely assaulted Mr Pan, caused severe injury to Mr Pan’s right eye and enucleated his left eye resulting in Mr Pan…

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 Regina

Details

AGLC: Chung v Regina [2007] NSWCCA 146
Case: [2007] NSWCCA 146
Decision Date: 22 May 2007

CaseChat Overview and Summary

In the matter of Chung v Regina, the appellant was convicted of inflicting grievous bodily harm with intent upon the victim, resulting in the victim becoming blind. The High Court of Australia was tasked with reviewing the sentences imposed by the lower court. The principal legal issue before the court was whether the lower court had appropriately balanced the appellant's prior good character against the gravity of the crime when determining the appropriate sentence. Additionally, the court needed to assess whether the sentences were proportionate to the severity of the harm inflicted.

The court considered the appellant's prior good character, which was a mitigating factor, but emphasised the extreme nature of the crime and its devastating impact on the victim. The court held that while the appellant's good character was a relevant consideration, the severity of the crime warranted a stringent sentence. The court found that the lower court had appropriately weighed the mitigating and aggravating factors and had not erred in imposing the sentences. The court concluded that the sentences were neither manifestly excessive nor inadequate, given the brutality of the attack and the significant harm caused to the victim.

The High Court upheld the sentences imposed by the lower court, affirming that the trial judge had correctly exercised their discretion in sentencing. The court emphasised the need for sentences to reflect the seriousness of the crime and to provide adequate deterrence and denunciation. The final orders of the court were to dismiss the appeal and to affirm the sentences imposed by the lower court.

Orders