Ha v Regina - [2009] NSWCCA 31

New South Wales
Court of Criminal Appeal

CITATION: HA v REGINA [2009] NSWCCA 31

HEARING DATE(S): 13 February 2009

JUDGMENT DATE:
13 February 2009

JUDGMENT OF: Grove J at 1; Blanch J at 2; Latham J at 3

EX TEMPORE JUDGMENT DATE: 13 February 2009

DECISION: 1. Leave to appeal granted
2. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Sentence appeal - Break, Enter with Intent to Steal - Parity with co-offender sentenced in Local Court - Co-offender's sentence reduced on appeal to District Court - Manifest inadequacy - appeal dismissed

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: R v Doan [2000] NSWCCA 317
R v Wei Pan [2005] NSWCCA 114
Melikian v R [2008] NSWCCA 156

PARTIES: Van Hoa Ha (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/00015971

COUNSEL: C Davenport (Applicant)
V Lydiard (Respondent)

SOLICITORS: Andrew Harris & Associates (Applicant)
S Kavanagh (Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 10 July 2008

2007/00015971

GROVE J
BLANCH J
LATHAM J
13 FEBRUARY 2009

VAN HOA HA v REGINA

Judgment

1 GROVE J : I agree with Latham J.

2 BLANCH J : I agree with Latham J.

3 LATHAM J : The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Judge Nield (the Judge) on 10 July 2008 following a plea of guilty to an offence of Breaking and Entering with Intent to Steal (s 113(1) Crimes Act 1900). That offence carries a maximum penalty of 10 years imprisonment. The applicant was sentenced to a non-parole period of 15 months with a balance of term of 5 months.

4 The sole ground of the appeal is that the applicant has a justifiable sense of grievance arising out of the sentence imposed upon a co-offender for the same offence. The co-offender, Tien Cong Nguyen, pleaded guilty in the Local Court and received a sentence of 6 months imprisonment. Mr Nguyen’s severity appeal to the District Court resulted in the suspension of that sentence.

5 The offence was committed at 1:30am on 20 May 2007. The applicant and his co-offender, using a crowbar, broke into a garage underneath a unit complex in Marrickville. The residents called police who apprehended the applicant. Approximately 12 bags were found outside the garage in the common area. The applicant maintained to police that the garage door was already open when he arrived and he denied knowledge of a pair of white gloves, which were found at the scene, bearing traces of the applicant’s DNA. The applicant claimed to have been visiting a friend in the unit complex that night. The applicant was charged with Aggravated (in company) Break, Enter with Intent to Steal.

6 The applicant maintained a plea of not guilty to that charge, and to the alternative charge of Breaking and Entering with Intent to Steal, until the first day of a trial set down for 18 February 2008. On that day…

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 Regina

Details

AGLC: Ha v Regina [2009] NSWCCA 31
Case: [2009] NSWCCA 31
Decision Date: 13 February 2009

CaseChat Overview and Summary

In the matter of Ha versus Regina, the High Court of Australia was asked to consider an appeal against a sentence imposed on Ha for the offence of breaking and entering with intent to steal. Ha had been convicted and sentenced to a term of imprisonment by the District Court, following a transfer from the Local Court. The co-offender, who had been sentenced in the Local Court, received a reduced sentence on appeal to the District Court, which Ha contended was manifestly inadequate compared to his own sentence.

The legal issues before the court included whether the sentence imposed on Ha was manifestly inadequate in comparison to the sentence imposed on his co-offender following their respective appeals. The court was required to determine if the disparity in sentences amounted to a manifest inadequacy warranting an appeal against Ha's sentence. Additionally, the court needed to consider the principles of parity and proportionality in sentencing, particularly in the context of co-offenders.

The court examined the principles of sentencing and the concept of manifest inadequacy, considering the respective roles and contributions of Ha and his co-offender in the offence. The court found that while the co-offender's sentence had been reduced, this did not necessarily render Ha's sentence manifestly inadequate. The court concluded that the sentences were proportionate and that there was no manifest inadequacy warranting an appeal. Consequently, the appeal was dismissed.

No further orders were made by the court in light of the dismissal of the appeal.

Orders