Ha v R

[2010] NSWCCA 83

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Ha v Regina [2010] NSWCCA 83

FILE NUMBER(S):
2007/15772

HEARING DATE(S):
7 April 2010

JUDGMENT DATE:
5 May 2010

PARTIES:
Ji Won Ha (Appellant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Howie J Hislop J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0666

LOWER COURT JUDICIAL OFFICER:
King DCJ

LOWER COURT DATE OF DECISION:
22 August 2008, 30 January 2009

COUNSEL:
C Nash;  D Kang (Appellant)
M Cinque (Respondent)

SOLICITORS:
Ford Criminal Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – offences against the person – kidnapping – aggravated offence
CRIMINAL LAW – appeal and new trial – verdict unreasonable or insupportable having regard to evidence – appeal dismissed
CRIMINAL LAW – appeal against sentence – grounds for interference – special circumstances – parity between co-offenders – sentence manifestly excessive – effect of sentence and imprisonment on prisoner – appeal dismissed

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Clarke v R [2009] NSWCCA 49
Lowe v The Queen [1984] HCA 46; 154 CLR 606
M v R [1994] HCA 63; 181 CLR 487
MFA v R [2002] HCA 53; 213 CLR 606
Postiglione v The Queen [1997] HCA 26; 189 CLR 295

TEXTS CITED:

DECISION:
1. Appeal against conviction dismissed;
2. Leave to appeal against sentence granted;
3. Appeal against sentence dismissed.

JUDGMENT:

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IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/15772

BEAZLEY JA
HOWIE J
HISLOP J

5 May 2010

Ji Won HA v REGINA

Judgment

1. BEAZLEY JA:  On 22 August 2008, the appellant was found guilty by a jury of the offence of aggravated kidnapping contrary to the Crimes Act 1900, s 86(2). The maximum penalty for the offence is a term of imprisonment of 20 years. The particulars of the charge were that on 1 March 2007 in Sydney, whilst in the company of Jong Chon Nam and a person or persons unknown, the appellant detained Neil Woodward without his consent and with the intention of obtaining an advantage, namely, to obtain money.

2. The appellant and Mr Nam were tried together.  Mr Nam was also found guilty.  The trial judge, King DCJ, imposed a sentence of 3 years 4 months, with a non-parole period of 2 years 6 months, on the appellant and Mr Nam. 

3. The appellant appeals against conviction and seeks leave to appeal against sentence upon the following grounds:

   Appeal against conviction: 

   (1)          That the verdict of guilty is unreasonable;

   Appeal against sentence: 

   (1)          The learned judge erred in failing to find special circumstances;

   (2)The learned judge erred by failing to give proper consideration to the issue of parity;

   (3)The learned judge erred by finding that the objective seriousness of the offence was at mid-range;

   (4)          The sentence was manifestly excessive.

   Background facts

4. The trial proceeded on the basis of a statement of agreed facts as well as contested evidence, including evidence given by each of the appellant and Mr…