He v Sun

Case [2021] NSWCA 95

Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: He v Sun [2021] NSWCA 95
Hearing dates: 26 March 2021
Date of orders: 20 May 2021
Decision date: 20 May 2021
Before: Bell P at [1];
Gleeson JA at [60];
McCallum JA at [61]
Decision:

1.        Appeal dismissed with costs.

2.        Dissolve the stay of orders made by Ward CJ in Eq on 25 September 2020 in relation to charges 1–4 as referred to in judgment Sun v He (No 2) [2020] NSWSC 1298.

3.       Order that a warrant issue for the committal of the appellant, Xin He (also known as Ethan He), to a correctional centre            for a term of six weeks commencing on the date of his arrest.

4.      Order that the warrant be executed forthwith.

Catchwords:

CONTEMPT – criminal contempt – where appellant engaged in conduct found to amount to a contumacious disregard of Court orders – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge failed to consider possibility of suspending sentence for contempt – whether sentencing judge erred in failing to suspend the sentence – whether sentence was manifestly excessive.

SENTENCING – criminal contempt – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge erred in failing to suspend the sentence – power to suspend a sentence for criminal contempt in the Supreme Court’s civil jurisdiction – whether sentence was manifestly excessive.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 8, 9, 10, 10A, 11, 12

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) sch 1 [14]

Supreme Court Act 1970 (NSW) s 75A

Supreme Court Rules 1970 (NSW) pt 55 r 13

Cases Cited:

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46

Australian Securities and Investments Commission v Matthews (2009) 71 ACSR 279; [2009] NSWSC 285

Barlow v R (2008) 184 A Crim R 187; [2008] NSWCCA 96

Berryman v R [2017] NSWCCA 297

Brown v R [2006] NSWCCA 144

Cabezuela v R [2020] NSWCCA 107

Campbell v R [2018] NSWCCA 87

Cumberland Council v Khoury [2017] NSWLEC 14

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455

Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340

Fogg v R [2011] NSWCCA 1

Furia v R [2010] NSWCCA 326

Goodbun v R [2020] NSWCCA 77

Hayek v R [2010] NSWCCA 139

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Holloway v R [2011] NSWCCA 23

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Martinez v R [2020] NSWCCA 250

Continue reading He v Sun

Sign in free to access the full text

Details
AGLC
He v Sun [2021] NSWCA 95
Case
[2021] NSWCA 95
Decision Date

CaseChat Overview and Summary

This appeal concerned a finding of criminal contempt against the appellant, Xin He, for contumacious disregard of court orders. The sentencing judge had imposed a sentence of six weeks' imprisonment. The appeal was heard by Bell P, Gleeson and McCallum JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the sentencing judge erred in failing to consider the possibility of suspending the sentence for criminal contempt, whether the sentence imposed was manifestly excessive, and whether the Supreme Court possessed the power to suspend a sentence for criminal contempt within its civil jurisdiction.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's decision. The Court affirmed that the sentencing judge had properly considered all relevant factors and that the sentence of six weeks' imprisonment was not manifestly excessive. The Court also confirmed the Supreme Court's power to suspend sentences for criminal contempt. Consequently, the Court ordered the dissolution of a stay of orders previously made and directed that a warrant issue for the committal of the appellant to a correctional centre for the term of six weeks, to be executed forthwith.

Orders

Orders of the court

1. Appeal dismissed with costs.

2. Dissolve the stay of orders made by Ward CJ in Eq on 25 September 2020 in relation to charges 1–4 as referred to in judgment Sun v He (No 2) [2020] NSWSC 1298.

3. Order that a warrant issue for the committal of the appellant, Xin He (also known as Ethan He), to a correctional centre for a term of six weeks commencing on the date of his arrest.

4. Order that the warrant be executed forthwith.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.