Hong v R

Case [2017] NSWCCA 238 9 October 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hong v R [2017] NSWCCA 238
Hearing dates: 11 September 2017
Date of orders: 09 October 2017
Decision date: 09 October 2017
Before: Basten JA at [1];
Beech-Jones J at [2];
Fagan J at [44]
Decision:
(1)   Leave to appeal be granted.

(2)   Appeal allowed in part.

(3)   Vary the sentence imposed for sequence 2 on the indictment so that the sentence for that offence is to commence on 2 June 2017 and expire on 1 March 2020 with the non-parole period to expire on 1 December 2018.
(4)   The appeal be otherwise dismissed.
Catchwords: CRIMINAL LAW – sentence – application by offender for leave to appeal – child pornography offences – whether sentence unreasonable or plainly unjust – applicant’s criminality around the mid-range level of seriousness – early plea demonstrated genuine remorse – Court could not confidently find that there was a low risk of re-offending –hardship suffered by the applicant’s family taken into account – whether sentence was outside the appropriate range for the criminality of the offence – whether the sentence reflected the applicant’s subjective case – comparable cases or statistics do not support a conclusion that the applicant’s sentence was manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 91H
Crimes Act 1958 (Vic), s 70
Criminal Code (Cth), s 474.19
Migration Act 1958 (Cth), ss 500, 501
Sex Offender Registration Act 2004 (Vic)
Cases Cited: Dennis v The Queen [2017] VSCA 251
Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42
Fitzgerald v R [2015] NSWCCA 266
James v R [2009] NSWCCA 62
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Miao v R [2017] NSWCCA 89
Obeid v R [2017] NSWCCA 221
R v Martin; 246 A Crim R 477; [2014] NSWCCA 283
R v Porte 252 A Crim R 294; [2015] NSWCCA 174
R v Zerafa 235 A Crim R 265; [2013] NSWCCA 222
Category: Principal judgment
Parties: Andrew Aun Hsiung Hong (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
D Barrow (Respondent)
Solicitors:
SJT Law (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2015/119630
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

3 August 2016

Before:

Culver DCJ

File Number(s):

2015/119630

Judgment

BASTEN JA: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by her Honour Judge Culver on 3 August 2016 for three child pornography offences.
The first offence on the indictment was using a “carriage service” to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth) (“the Code”). The maximum penalty for this offence was 15 years imprisonment and a fine of $153,000. For this offence, the applicant was sentenced to a term of imprisonment of 2 years commencing 2 August 2016 and expiring on 1 August 2018.
The second and third offences on the indictment…

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 Hong v R

Details

AGLC: Hong v R [2017] NSWCCA 238
Case: [2017] NSWCCA 238
Decision Date: 09 October 2017

CaseChat Overview and Summary

In the matter of Hong v R, the applicant, who was convicted of child pornography offences, sought leave to appeal against the sentence imposed. The application was heard in the Court of Criminal Appeal in New South Wales. The central issue for the court was to determine whether the sentence imposed was unreasonable or plainly unjust, considering the applicant's level of criminality, the presence of genuine remorse, and the potential risk of re-offending. Additionally, the court had to assess whether the sentence appropriately reflected the subjective circumstances of the case, including the hardship experienced by the applicant's family.

The court examined the level of criminality involved in the offences, which it assessed to be around the mid-range of seriousness. The applicant's early plea and demonstrated genuine remorse were taken into account as mitigating factors. However, the court could not confidently conclude that there was a low risk of re-offending. The applicant's family's hardship was also considered, but this did not shift the sentence outside the appropriate range for the offence. The court scrutinised comparable cases and statistics but found no basis to conclude that the sentence was manifestly excessive. The court held that the sentence was within the range of appropriate penalties for the nature of the offences and the circumstances of the applicant.

The Court of Criminal Appeal ultimately determined that the sentence imposed was not unreasonable or plainly unjust. It rejected the applicant's application for leave to appeal, affirming the trial judge's assessment of the case. The court emphasised that the sentence reflected both the objective seriousness of the crimes and the subjective mitigating factors presented by the applicant. The decision underscored the importance of balancing the need for punishment with the acknowledgment of remorse and personal circumstances in sentencing.

Orders