Deng v The King

Case [2023] SASCA 35

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DENG v THE KING

[2023] SASCA 35

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

6 April 2023

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF

The appellant was charged with one count of recklessly causing serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).

The circumstances of the offending were that during a physical altercation between the appellant and the complainant (who was in a relationship with the appellant’s former partner), the appellant bit off a piece of the complainant’s lower lip, causing her serious harm.  The prosecution case was that the appellant instigated the physical altercation.  The essential issue at trial was whether the evidence excluded, as a reasonable possibility, that the complainant instigated the altercation, with the appellant acting in self-defence.

Following a trial by judge alone, the appellant was convicted.  The judge accepted the prosecution case that the appellant instigated the altercation, and rejected as a reasonable possibility that the appellant was acting in self-defence. 

The appellant was sentenced to five years imprisonment, with a non-parole period of two years.  The judge declined to suspend the appellant’s sentence, and also declined to make an order that the sentence be served on home detention. 

The appellant appeals both her conviction and sentence. 

Conviction appeal

The grounds of appeal against conviction are as follows:

1.the judge erred in his application of the burden of proof in relation to the issues to be determined;

2.the judge failed to bring to account the evidence of prosecution witnesses other than the complainant in undermining the reliability of the complainant and in supporting the appellant’s evidence;

3.the judge erred in concluding, in relation to the appellant’s account and the injuries she suffered, that “it would be very difficult to see why she sustained only one small abrasion over the right eyebrow”;

4.the judge erred in his approach to the legal issues by determining that the appellant intended to disfigure when she was not charged with an intention to cause any degree of harm;

5.      the judge’s reasons were inadequate; and

6.the verdict of the judge was unreasonable or cannot be supported having regard to the evidence.

Held, per the Court, granting permission to appeal but dismissing the appeal:

1.      none of the grounds of appeal against conviction…

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Deng v The King [2023] SASCA 35
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[2023] SASCA 35
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CaseChat Overview and Summary

The appellant, Ms Deng, appealed against her conviction and sentence for an offence. The appeal concerned the appellant's actions on 15 January 2019, when she drove to Adelaide and confronted Ms Gai at a house where Ms Gai was staying with her child and Mr Jur. The appellant had a history of animosity towards Ms Gai, stemming from Mr Jur's relationship with Ms Gai, despite the appellant and Mr Jur having four children together and the appellant and Mr Jur continuing to have sexual intercourse. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the Court included whether the verdict of guilty was unreasonable or insupportable having regard to the evidence, and whether the sentence imposed was manifestly excessive or inadequate. Specifically, the Court considered whether the sentencing judge erred in imposing an immediate custodial sentence given the appellant's lack of prior convictions and responsibility for five children, and whether the judge sentenced the appellant on the basis of a specific intention to harm and disfigure Ms Gai when the charge only involved reckless intent. A further issue was whether the judge failed to consider provisions of the Sentencing Act 2017 (SA) that would have allowed for a partially suspended sentence.

The Court dismissed the appeal against conviction, finding that the verdict was not unreasonable. Regarding the sentence appeal, the Court found that the sentencing judge had not erred in his findings of fact or in his assessment of the appellant's intention. The Court noted that the judge had considered the appellant's background, including her refugee status and responsibility for her children, but concluded that the gravity of the offending, which involved a violent and unprovoked attack, warranted an immediate custodial sentence. The Court also found that the sentencing judge had properly considered the relevant provisions of the Sentencing Act and that there was no error in declining to impose a partially suspended sentence or a home detention order.

The Court granted permission to appeal against sentence but dismissed the appeal. The sentence of five years imprisonment with a non-parole period of two years was upheld. The appellant had served 22 days in custody before being granted bail pending the appeal.

Orders

Orders of the court

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Background

Background to the litigation

A judge of this Court referred the issue of permission to appeal on Grounds 1-3 for hearing as on appeal. Ground 4 did not require permission. During the course of the hearing, the appellant was given permission to add Grounds 5 and 6.Background The appellant was born in an Ethiopian refugee camp. In 1992, she moved to Kenya, and in October 2002, migrated to Australia with members of her family. They lived first in Brisbane and then in Toowoomba. In 2005, she moved to Adelaide. The appellant met Mr Jur in 2005 and commenced a relationship with him in either 2005 or 2006. The appellant regarded Mr Jur as her husband from the commencement of their relationship, which she said was reflected in a cultural ceremony held at Mr Jur’s house. They were not legally married. The appellant and Mr Jur had four children together, born between 2007 and 2015. The relationship between the appellant and Mr Jur broke down over time and, in 2015, Mr Jur moved to Melbourne to study. At the time of moving, Mr Jur considered the relationship with the appellant to be over. He told the appellant that he would take her back to her family in Brisbane in accordance with the cultural traditions of her community, but the appellant refused. Shortly after this, the appellant moved to Melbourne with their four children and set up a home near where Mr Jur was living. Whilst studying in Melbourne, Mr Jur would assist with the children, including babysitting them whilst the appellant worked shift work. Mr Jur had met the complainant, Ms Gai, in Kenya in 1995. Upon moving to Australia, Mr Jur and Ms Gai continued their friendship when they met again at school, between 2005 and 2006. At that time, Mr Jur was interested in commencing a romantic relationship with Ms Gai, however she declined. It was after this that Mr Jur commenced his relationship with the appellant. In 2015, when the appellant and Mr Jur’s relationship broke down, Mr Jur commenced a relationship with Ms Gai. In 2016, Ms Gai fell pregnant. Mr Jur told the appellant about his relationship with Ms Gai at the beginning of 2017. In early 2018, Mr Jur and Ms Gai had a second child. It is apparent that, notwithstanding his relationship with Ms Gai, Mr Jur continued to have sexual intercourse with the appellant. Indeed, the appellant and Mr Jur had a fifth child together in 2018. At the time of the alleged offending, Ms Gai was living in Adelaide with the children, whilst Mr Jur remained in Melbourne to complete his studies. The appellant’s two youngest children were still living with her in Melbourne, but the three older children were with her family in Brisbane. Mr Jur was still regularly assisting the appellant with the care of their two children living in Melbourne. There was no significant challenge to the basic facts in the above summary of the background relationships between the parties. There was a dispute, however, as to whether Mr Jur’s relationship with Ms Gai was a source of animosity on the part of the appellant. On the prosecution, case it was a source of great animosity; on the appellant’s evidence, it was not a source of any animosity on her part towards Ms Gai. We shall return to this issue when addressing the evidence, and in particular the evidence of the appellant.The evidence at trial

Evidence

Evidence Before The Court

Given the nature of the grounds of appeal, it is necessary to summarise the pertinent aspects of the evidence of these witnesses. In so doing, we have drawn largely from the trial judge’s (unchallenged) summary of their evidence in chief.Ms Gai’s evidence After outlining the history of her relationship with Mr Jur in terms consistent with the above, Ms Gai gave evidence of threatening phone calls and messages that she said she received from the appellant. Her evidence was that, from about 2017, she began receiving phone calls from the appellant, who would scream at her over the phone, calling her a ‘slut’ or ‘prostitute’. She said that on hanging up the phone, she then received texts from the appellant threatening her and her children. In January 2019, Ms Gai was living in Adelaide with her mother, sister and children. On Ms Gai’s evidence, her son became unwell, and so Mr Jur said he would come to Adelaide to see her and the children. Ms Gai explained that because her family’s cultural beliefs did not permit Mr Jur to stay under the same roof as her mother, she and Mr Jur arranged to stay at the Broadview house of Mr Jur’s brother, Mamer. On the evening of 14 January 2019, Ms Gai and Mr Jur, together with their youngest child, slept in the upstairs bedroom of Mamer’s house, overlooking the street. Ms Gai said that, during the course of the evening, she overheard Mr Jur receive a phone call from the appellant telling him that she was bringing her two children to Adelaide by car. Ms Gai gave evidence that at about 6.30am on the morning of 15 January 2019, there was a loud banging on the front door which caused Mr Jur to look out the window. Mr Jur indicated that the appellant was outside, and told Ms Gai that she should stay out of sight. The knocking and banging at the front door continued. They stayed quiet in the hope that the appellant would stop. On occasion, Ms Gai looked out of the window herself, and saw the appellant walking back and forth between her car and the door. At times the appellant drove off and then returned. Mr Jur began receiving phone calls from the appellant, during which Ms Gai could hear the appellant saying that she knew Ms Gai was at the house; that she could see her shoes at the front of the house; and that she wanted Ms Gai out of the house, or to come outside. Ms Gai said that she was terrified, given the appellant’s behaviour and the background of the earlier phone calls and threats she had received. She said that after about 20 or 30 minutes, she became aware that Mamer had arrived at the house. Ms Gai could hear him speaking with the appellant, and the appellant saying that she knew that Ms Gai was there; that she had seen her shoes; that she wanted Ms Gai to come out of the house; and that she would not leave until Ms Gai did so. Ms Gai’s evidence was that Mr Jur eventually went out to try and get the appellant to leave. Ms Gai remained in the upstairs bedroom with the baby. She said she could hear Mr Jur trying to tell the appellant that they should leave, and that he would go with her.

Decision

Reasons for decision

For these reasons, Ground 4 has not been made out.Conclusion on conviction appeal Noting that permission was not required on Ground 4, We grant permission to appeal against conviction on Grounds 1, 2, 3, 5 and 6. However, we dismiss the appeal against conviction.PART B: THE SENTENCE APPEAL On 14 June 2022, the judge sentenced the appellant to five years imprisonment. He fixed a non-parole period of two years. The judge declined to suspend the appellant’s sentence, and also declined to make an order that the sentence be served on home detention. The judge ordered that the appellant’s sentence commence on the date she was taken into custody, namely 8 June 2022 (being the date of sentencing submissions). The judge also made an intervention order. The appellant filed notices of appeal against conviction and sentence on 22 June 2022. On 30 June 2022 a judge of this Court granted the appellant bail pending appeal. The appellant had spent 22 days in custody by the time she was released. The appellant seeks permission to appeal against sentence on four grounds, namely that the judge erred:1. in imposing a sentence that is manifestly excessive;2. in imposing an immediate custodial sentence where the appellant has no prior convictions and was responsible for the care of five children;3. in sentencing the appellant on the basis of a specific intention to harm and disfigure Ms Gai in circumstances where she was charged only with an offence of reckless intent; and4. in failing to consider the combination of ss 96(3)(b) and 96(5) of the Sentencing Act 2017 (SA) which provided a means by which a partially suspended sentence could have been imposed on the appellant. The notice of appeal as originally drafted contained only Grounds 1 to 3. A judge of this Court granted permission to appeal on Ground 1 and referred Grounds 2 and 3 for hearing as on appeal. Permission to add Ground 4 was sought and granted at the commencement of the hearing of the appeal. The circumstances of the offending The judge commenced his consideration of the factual circumstances by noting that there was some conflict between the appellant’s and Mr Jur’s evidence at trial as to the circumstances leading up to the offending. These competing versions have been addressed at length in our earlier reasons on the conviction appeal, and need not be repeated. The judge stated that he accepted Mr Jur’s evidence in this respect beyond a reasonable doubt. Based upon these findings, the judge found that the appellant harboured “resentment, growing anger and hostility towards Ms Gai from the moment Mr Jur told you he had formed a relationship and commenced to have children with her.” He found that this was apparent from the phone and text threats the appellant sent to Ms Gai over time, from her attempts in the days preceding the physical altercation to prevent Mr Jur from coming to Adelaide, from her angry and hostile behaviour in the period prior to forcing her way into the house where Ms Gai was, from her threats to damage the vehicle she thought might belong to Ms Gai, and from the “sudden, violent and unprovoked attack” that the appellant launched on Ms Gai.

Ratio Decidendi

Legal Principle Established

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