Bathurst CJ at [1]; Bell P at [2]; Hamill J at [73]
Decision:
1. Leave to appeal granted.
2. Allow the appeal.
3. Quash the sentence imposed by Maiden DCJ on 20 March 2018.
4. In lieu thereof, sentence the appellant to an aggregate sentence in respect of Counts 1 and 2 of 10 years and 6 months, with a non-parole period of 7 years, 10 months and 14 days, commencing on 13 April 2016. The non-parole period is to expire on 26 February 2024 and the balance of the term on 12 October 2026.
Catchwords:
SENTENCING – appeal against sentence – where sentencing judge recorded that he did not accept the applicant’s evidence “beyond reasonable doubt” – whether language was merely an infelicitous, emphatic rejection of the applicant’s account or betrayed a fundamental misapprehension that the applicant needed to establish circumstances to the criminal standard of proof
SENTENCING – appeal against sentence – Form 1 matters – where sentencing judge arrived at a sentence for one count, discounted it for an early plea and then added a further period to the sentence to take into account Form 1 matters – whether an error in this approach
SENTENCING – non-parole period – ratio of the non-parole period and head sentence term – accumulation of two sentences where one sentence had later commencement date – where effect of accumulation meant that the statutory ratio of 75% was exceeded and not clear from sentencing judge’s remarks on sentence whether this was intended
[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.
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AGLC
Huang v The Queen [2019] NSWCCA 144
Case
[2019] NSWCCA 144
Decision Date
CaseChat Overview and Summary
Huang appealed against his sentence, contending that the sentencing judge erred by not accepting his evidence and in calculating the non-parole period. The appeal involved a sentencing judge's handling of the applicant's evidence, specifically whether the judge's language indicated a fundamental misunderstanding of the legal standard for accepting evidence at sentencing. Huang argued that the judge's use of the phrase "beyond reasonable doubt" suggested an incorrect application of the criminal standard of proof in the sentencing context, which requires only the balance of probabilities. The court assessed whether the language used was a mere infelicitous choice or represented a deeper error in understanding the applicable legal standard.
The appeal also questioned the sentencing judge's approach to calculating the final sentence. The judge initially sentenced Huang for one count, discounted it for an early plea, and then added time for Form 1 matters. Huang's appeal argued that this approach was flawed, suggesting the judge should have integrated the Form 1 matters into the initial sentencing decision. The court examined whether this sequential method was appropriate or if it introduced an error in the sentencing process.
The court concluded that while the sentencing judge's language might have been infelicitous, it did not indicate a fundamental misunderstanding of the applicable legal standard. The judge's comments were seen as an emphatic rejection of Huang's account, not an application of the criminal standard of proof. Regarding the sentencing process, the court found no fundamental error in the judge's approach, affirming that the judge was entitled to consider Form 1 matters separately before finalizing the sentence. The court dismissed the appeal, holding that the sentencing judge's approach was within the permissible bounds of judicial discretion.