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Hei Hei v R

Hei Hei v R

Case [2009] NSWCCA 87 2 April 2009

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New South Wales
Court of Criminal Appeal

CITATION: HEI HEI, Marcus Joseph v R; R v Marcus Joseph HEI HEI [2009] NSWCCA 87

HEARING DATE(S): 23 March 2009

JUDGMENT DATE:
2 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Rothman J at 3

DECISION:
(1) Leave to appeal be granted;
(2) The appeal against sentence by Mr Hei Hei be dismissed;
(3) The appeal by the Crown against the order of his Honour Judge Bennett DCJ, disqualifying Mr Hei Hei from driving, be allowed and in lieu thereof the following order issue:
"(i) Pursuant to the terms of section 188(2)(d)(ii) of the Road Transport (General) Act 2005, Mr Hei Hei be disqualified from driving for a longer period than 3 years, being for the period concluding 19 February 2014."

CATCHWORDS: CRIMINAL LAW – sentencing – appeal – aggravating feature – inherent in elements of crime – no lesser sentence warranted – no manifest excess – disqualification from driving – term fixed by judge identical to automatic disqualification period but from future date – power to fix shorter or longer period – original intent given effect – longer period fixed expiring 3 years after conclusion of non-parole period - TRAFFIC LAW – offence – disqualification – method of fixing non-automatic period of disqualification – need to have shorter or longer period – method corrected

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Road Transport (General) Act 2005

CATEGORY: Principal judgment

CASES CITED: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305
Elyard v R [2006] NSWCCA 43
Ex parte Thomas; Re Arnold (1966) 84 WN (Part 1) NSW 493; [1966] 2 NSWR 197
Gardner v R [2003] NSWCCA 199
Kutchera v R [2007] NSWCCA 121
R v Abboud [2005] NSWCCA 251
R v Boulghourgian [2001] NSWCCA 460; (2001) 125 A Crim R 540
R v Finnie (No 2) [2004] NSWCCA 150
R v McMillan [2005] NSWCCA 28
R v Moore; Ex parte Graham [1977] HCA 20; (1977) 138 CLR 164
R v Presard [2004] 147 A Crim R 385
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Stewart [2005] NSWCCA 290
R v Wall [2002] NSWCCA 42
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: Marcus Joseph HEI HEI (Applicant/Respondent)
Regina (Respondent/Applicant)
Regina (Applicant)
Marcus Joseph HEI HEI (Respondent)

FILE NUMBER(S): CCA 2007/00015151

COUNSEL: M Johnston (Applicant/Respondent)
J Dwyer (Respondent/Applicant)

SOLICITORS: Legal Aid Commission (Applicant/Respondent)
Office of the Director of Public Prosecutions (Respondent/Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0297

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 20 February 2008

2007/00015151

McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J
2 APRIL 2009

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 Hei Hei v R

Details

AGLC: Hei Hei v R [2009] NSWCCA 87
Case: [2009] NSWCCA 87
Decision Date: 2 April 2009

CaseChat Overview and Summary

In the case of Hei Hei v R, the appellant contested the sentencing decision made by the lower court. The primary issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. Additionally, the court examined the legality and appropriateness of the disqualification from driving imposed on the appellant. The High Court of Australia heard the appeal and provided its judgment.

The legal issues encompassed whether the sentence was appropriate given the circumstances and whether the disqualification from driving was correctly imposed and quantified. The court was required to determine if the trial judge's approach to sentencing and disqualification complied with the applicable legal principles and statutory provisions. In particular, the court needed to consider whether the disqualification period was reasonably fixed under the relevant statutory framework.

The court held that the sentence imposed was not manifestly excessive, and the trial judge's consideration of the aggravating factors was appropriate. The court found that the trial judge had correctly identified and assessed the aggravating aspects of the crime. In relation to the disqualification from driving, the court determined that the method employed to fix the non-automatic disqualification period was flawed, as it did not properly consider the statutory requirement to set a shorter or longer period. However, the court found that the trial judge's original intent was to fix a longer period, albeit starting from a future date. The court rectified the method to align with the statutory requirements, setting the longer disqualification period to expire three years after the conclusion of the non-parole period.

The final orders included confirming the sentence imposed by the trial judge, and rectifying the method for fixing the disqualification from driving to ensure compliance with statutory requirements. The disqualification period was set to expire three years after the conclusion of the non-parole period, maintaining the trial judge's original intent.

Orders