Deng v The King (No 2)

Case [2023] SASCA 45

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DENG v THE KING (No 2)

[2023] SASCA 45

Judgment of the Court of Appeal  

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

5 May 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

The appellant was convicted of causing serious harm, being reckless as to whether she caused serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty was imprisonment for 15 years. The sentencing judge imposed a head sentence of five years’ imprisonment and fixed a non-parole period of two years.

After bail was revoked, the appellant was in custody for 22 days until she was granted bail pending appeal.

The appellant’s appeal against conviction was dismissed, but her appeal against sentence was both conceded and allowed on the basis that the sentencing judge failed to consider an available sentencing option, being partial suspension pursuant to ss 96(3)(b) and 96(5) of the Sentencing Act 2017 (SA), Deng v The King [2023] SASCA 35.

After receiving further evidence and submissions from the parties the Court considered resentence where the available sentencing options comprised immediate incarceration, partial suspension and home detention.

Held: (the Court) setting aside the District Court sentence, and sentencing the appellant to imprisonment for three years, five months and eight days, with a non-parole period fixed at 15 months and eight days:

1.The sentencing court need not determine that there is not “good reason” to suspend under s 96 before determining that “the sentence should not be suspended” under s 71(1)(b) of the Sentencing Act 2017 (SA).

2.Whilst the seriousness of the appellant’s offending might not ordinarily warrant the leniency implicit in an order for home detention, the unusual and peculiar circumstances of this case warranted that sentencing option.

Criminal Law Consolidation Act 1935 (SA) s 23; Sentencing Act 2017 (SA) ss 71, 96, referred to.
Adams (a pseudonym) v The Queen [2022] SASCA 47; Adeseolu v The King [2022] SASCA 113; Betts v The Queen (2016) 258 CLR 420; BRK v Police [2020] SASC 116; Deng v The King [2023] SASCA 35; Kentwell v The Queen (2014) 252 CLR 601; R v Chalmers (2012) 115 SASR 150; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Galffy [2009] SASC 261; R v Harkin (2011) 109 SASR 334; R v Hosking (2017) 128 SASR 37; Rendic v The Queen [2021] SASCA 23, considered.

DENG v THE KING (No 2)
[2023] SASCA 45

Court of Appeal – Criminal: Livesey P, Doyle and Bleby…

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Deng v The King (No 2) [2023] SASCA 45
Case
[2023] SASCA 45
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CaseChat Overview and Summary

In *Deng v The King (No 2)*, the appellant, Ms. Deng, appealed against a sentence imposed by the District Court. The appeal concerned the appropriate sentence for Ms. Deng, with particular consideration given to her personal circumstances and the potential impact of imprisonment on her and her children. The matter was heard by Livesey P, Doyle J, and Bleby J.

The central legal issue before the Court was whether the original sentence of imprisonment was appropriate, or if an alternative sentencing order, specifically a home detention order, should be substituted. This required the Court to assess the appellant's personal circumstances, including her mental health and the needs of her children, in determining the most just and effective sentence. The Court also had to consider its power to substitute a different sentence on appeal.

The Court reasoned that the appellant's mental health frailty, coupled with the significant hardship her children would face if she were to be imprisoned and they were required to move to Adelaide, strongly supported the imposition of a home detention order. The Court concluded that the District Court sentence should be set aside. On re-sentence, the Court ordered that the imprisonment term be reduced to three years, five months, and eight days, with a non-parole period of 15 months and eight days. Crucially, the Court ordered that this sentence be served by way of home detention at a specified address, with conditions allowing the appellant to work and assist with her children's schooling. The home detention order was to commence immediately.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, the general nature of the appellant’s personal circumstances, particularly the frailty of her mental health, together with the evident hardship confronting her children when moving to Adelaide, also support the making of an order for home detention in this case. Conclusion On re-sentence the Court will order as follows:1.The appellant’s District Court sentence is set aside.2.After reduction for time spent in custody, the sentence of imprisonment will be three years, five months and eight days and the non-parole period will be fixed at 15 months and eight days.3.There will be an order that the appellant’s sentence be served on home detention at the address provided to the Court, with conditions to be specified which include allowing the appellant to work and assist with the schooling of her children. The sentence will commence to operate today.

Ratio Decidendi

Legal Principle Established

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