Ha v R

Case [2008] NSWCCA 141 24 June 2008

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New South Wales
Court of Criminal Appeal

CITATION: Van Can HA v REGINA [2008] NSWCCA 141

HEARING DATE(S): 14 December 2007

JUDGMENT DATE:
24 June 2008

JUDGMENT OF: Grove J at 1; Hulme J at 7; Simpson J at 63

DECISION: Grant leave to appeal
Dismiss the appeal

PARTIES: Van Can HA
Regina

FILE NUMBER(S): CCA 2007/2943

COUNSEL: Crown: P Miller
Applicant: P Hastings QC

SOLICITORS: Crown: S Kavanagh
Applicant: D'Arcy Sloman Peacock Lawyers

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0992

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

LOWER COURT DATE OF DECISION: 09/02/07

- 19 -

2007/00002943

GROVE J
HULMEJ
SIMPSON J
Tuesday 24 June 2008

Van Can HA v REGINA

JUDGMENT

1 GROVE J: I agree with the orders proposed by Hulme J.

2 I wish only to add some brief observations. The effective sentence is severe but it was justified by the conclusion of the learned sentencing judge that the offences did not arise from isolated criminality but from the appellant’s engagement in trafficking for financial gain. That finding was available and plainly correct.

3 The reasons given by Hulme J demonstrate why the appellant can have no justifiable sense of grievance about the way he was treated when compared to sentences received by other offenders to which argument in support of the appeal was directed.

4 Unlike Hulme J I would not, after examination, categorize the remarks of the sentencing judge as unduly cryptic nor would I conclude that there was shown an inadequate compliance with the mandatory requirements of s 21A of the Crimes (Sentencing Procedure) Act 1999. Of course the language of that statutory provision is that of command but I would stress that the scope of the mandate should not be misunderstood and any compliance is dependent upon the existence of relevant evidence of any particular factor. The mandate does not require a sentencing judge to engage in a ritual analysis of the possible factors scheduled therein in order sufficiently to reveal the processes involved in the penalty assessment. The expression in the present instance could have more readily conveyed the necessary information by the use of simple statements of findings of fact but, nevertheless, I consider that there was adequate discharge of duty. It should be borne in mind that the “matters” referred to in s 21A(1) extend beyond the litany of aggravating or mitigating factors tabled in s 21A (2) and s 21A (3) and prudence would suggest making findings in accordance with the evidence in a particular case rather than commencing by referring to the content of those subsections as a type of checklist.

5 Interwoven into the remarks on sentence were references to some 26 reported and unreported legal authorities as well as recitation of extracts from statute and those additions tended to obscure the statement of reasoning which had been undertaken. Whilst, as I have said, I did not upon analysis find his Honour’s remarks unduly cryptic, it is difficult to recognize remarks couched in…

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 Ha v R

Details

AGLC: Van Can Ha v R [2008] NSWCCA 141
Case: [2008] NSWCCA 141
Decision Date: 24 June 2008

CaseChat Overview and Summary

The case of Ha v R involved the Applicant appealing against the sentence imposed by the lower court. The Applicant was convicted of a criminal offence and subsequently sentenced. The appeal was brought before the court, which needed to determine whether the sentences imposed were manifestly excessive or whether there were errors in the sentencing process that warranted interference. The court was required to assess the severity of the sentences in light of the crime committed and the principles of sentencing as outlined in relevant legislation.

The legal issues before the court included whether the sentences were manifestly excessive and whether any errors made during the sentencing process warranted the court's intervention. The court had to consider the nature and gravity of the offence, the circumstances in which it was committed, and the appropriate range of penalties for such offences. Furthermore, the court needed to examine whether the sentencing errors were significant enough to justify altering the sentences imposed by the lower court.

The court concluded that the sentences imposed on the Applicant were not manifestly excessive. While acknowledging that there were errors in the sentencing process, the court determined that these errors did not significantly impact the overall outcome. The court held that, in light of the principles set out in the Criminal Appeal Act, it should not interfere with the sentences unless they were manifestly excessive. Consequently, the appeal was dismissed, and the original sentences were upheld.

No further orders were made by the court beyond dismissing the appeal and affirming the sentences as imposed by the lower court.

Orders