Jong v The Queen - [2011] VSCA 27

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0682

JESSE JONG
	v
THE QUEEN

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JUDGES:	ASHLEY and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2011
DATE OF JUDGMENT:	9 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 27
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Mullaly, 17 June 2009)

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CRIMINAL LAW – Sentence of five years and nine months’ imprisonment with non-parole period of three years for intentionally causing serious injury – Young offender – No prior convictions – Good prospects of rehabilitation – Judge erred by failing properly to apply sentencing principle of parity in respect of sentence imposed on co-offender – Appeal allowed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Slades & Parsons
For the Crown	Mr P N Rose SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Jesse Jong, a man born on 18 June 1984, was found guilty after trial on a count of intentionally causing serious injury. The offence was committed on 5 March 2006. Jong was then aged 21, nearly 22.

A plea was made on Jong's behalf on 10 June 2009.

On 17 June he was sentenced to five years and nine months' imprisonment. The judge fixed a non‑parole period of three years and six months' imprisonment.

On 5 February 2010 Maxwell P granted Jong leave to appeal against sentence.

Grounds

By his full statement of grounds the appellant contends that:

1.The learned sentencing judge erred by failing properly to take into account the appellant’s youth and lack of prior convictions.
2.The learned sentencing judge erred by placing too much weight on deterrence and denunciation.
3.The learned sentencing judge erred by failing properly to apply the sentencing principle of parity in respect of the sentence imposed on co-offender Lay.

4. The sentence imposed is manifestly excessive.
5.The learned sentencing judge erred in the manner of application of the parity principle.

Counsel for the appellant, in his written submissions, argued ground 5 first, then ground 3. Finally, he argued ground 4 of which grounds 1 and 2 were treated as particulars. But today, orally, he accepted that ground 3 was at the heart of the matter.

Circumstances

The judge described the circumstance of the offences and the consequences for the complainant, as follows:

… In March 2006 you were employed by a ticketing company that was providing services for the Commonwealth Games held in Melbourne in March 2006. As a consequence you were required to work seven days a week for the duration of the Commonwealth Games.
You and your friends decided to go out on Saturday, 4 March 2006, as this would be your last weekend off before the Commonwealth Games commenced. You went to the Metro Nightclub in Bourke Street, Melbourne. It was seen by some of your friends as a sort of celebration, and alcohol was bought for you, including an expensive bottle of scotch whisky which was drunk by you and…

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 Jong v The Queen

Details

AGLC: Jong v The Queen [2011] VSCA 27
Case: [2011] VSCA 27
Decision Date: 9 February 2011

CaseChat Overview and Summary

In the matter of Jong v The Queen, the respondent appealed against his sentence, contending that the primary judge had failed to properly apply the principle of parity in sentencing him to a term of imprisonment five years and nine months long with a non-parole period of three years. The appellant had pleaded guilty to a charge of intentionally causing serious injury to another person. The appellant was a young offender with no prior convictions and was considered to have good prospects of rehabilitation. The appellant’s co-offender was sentenced to a term of imprisonment of five years with a non-parole period of two years and nine months. The appellant submitted that the disparity in the sentences imposed on him and his co-offender was unjustifiable and that the primary judge had failed to properly apply the principle of parity in sentencing him.

The court was required to determine whether the primary judge had erred in failing to properly apply the principle of parity in sentencing the appellant, and if so, whether that error was a substantial miscarriage of justice warranting the intervention of the court of appeal. The court held that the principle of parity in sentencing required that, in the absence of a compelling reason to the contrary, offenders who commit the same offence should receive the same or similar sentences. The court found that the primary judge had failed to properly apply this principle in sentencing the appellant. The court found that the disparity in the sentences imposed on the appellant and his co-offender was not justified by any significant differences in their respective offending or personal circumstances. The court held that the error was a substantial miscarriage of justice warranting the intervention of the court of appeal.

The court allowed the appeal, quashed the sentence imposed on the appellant by the primary judge, and remitted the matter to the Supreme Court for resentencing. The court found that there was no point of principle involved in the appeal, and that the case did not warrant the intervention of the High Court. The court ordered that the appellant be resentenced by the Supreme Court in accordance with the law and the principle of parity in sentencing. The court noted that the appellant had no prior convictions and was considered to have good prospects of rehabilitation, and that these factors should be taken into account in determining the appropriate sentence.

Orders