Jung v R

Case [2017] NSWCCA 24 6 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Jung v R [2017] NSWCCA 24
Hearing dates: 13 February 2017
Date of orders: 06 March 2017
Decision date: 06 March 2017
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Latham J at [73]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - 10 indecent assault offences under s.61L Crimes Act 1900 - two further offences taken into account on a Form 1 - offences committed by physiotherapist against six female patients during treatment - aggregate sentence of imprisonment for five years with non-parole period of three years and six months - claim of error in sentencing Judge’s approach to evidence of offender’s mental condition at time of offences - error not demonstrated - claim that aggregate sentence manifestly excessive - repeated offences committed against patients during treatment - abuse of trust - good character a precondition to registration as a health practitioner - offences involved gross breaches of offender’s ethical obligations - need for appropriate punishment - role of general deterrence - aggregate sentence not manifestly excessive - appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Health Practitioner Regulation National Law (NSW)
Cases Cited:
Baines v R [2016] NSWCCA 132
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Hartman v R [2011] NSWCCA 261; 87 ACSR 52
Health Care Complaints Commission v Brush [2015] NSWCATOD 120
JM v R [2014] NSWCCA 297
Lam v R [2015] NSWCCA 143
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Panda v State of Western Australia [2017] WASCA 5
R v Arvind (NSWCCA, 8 March 1996, unreported)
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534
R v Kennedy [2000] NSWCCA 527
R v Qin [2008] NSWCCA 189
R v Reeves [2014] NSWCCA 154; 243 A Crim R 559
Reeves v R; R v Reeves [2013] NSWCCA 34
Reeves v The Queen [2013] HCA 57; 88 ALJR 215
WW v R [2012] NSWCCA 165
Texts Cited: ---
Category: Principal judgment
Parties: Youngjin Jung (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr B Pierce (Applicant)
Ms N Williams (Respondent)
Solicitors:
Michael Song (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/177163; 2014/177471
Publication restriction: ---
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

2 March 2016

Before:

Jeffreys DCJ

File Number(s):

2014/177163; 2014/177471

Judgment

HOEBEN CJ AT CL: I agree with Johnson J.
JOHNSON J: The Applicant, Youngjin Jung, seeks leave to appeal against an aggregate sentence of imprisonment imposed by Jeffreys DCJ at the Sydney District Court on 2 March 2016 with respect to a series of indecent assault offences committed by the Applicant, a physiotherapist, against six of his female patients during the course of treatment in 2014.

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 Jung v R

Details

AGLC: Jung v R [2017] NSWCCA 24
Case: [2017] NSWCCA 24
Decision Date: 06 March 2017

CaseChat Overview and Summary

The appeal against sentence in Jung v R involved the appellant, a physiotherapist, who was found guilty of committing multiple indecent assault offences against female patients during treatment. The appellant was sentenced to an aggregate term of imprisonment for five years, with a non-parole period of three years and six months. The legal issues in this case revolved around the appellant’s contention that the sentencing judge erred in his approach to the evidence of the appellant’s mental condition at the time the offences were committed and that the aggregate sentence was manifestly excessive. The appellant argued that the repeated offences were committed against patients during treatment, representing a breach of trust, and that his good character was a prerequisite to his registration as a health practitioner. The appellant further argued that the offences involved gross breaches of his ethical obligations and that the need for appropriate punishment and the role of general deterrence justified a lesser sentence.

The court examined the arguments put forward by the appellant and found no error in the sentencing judge’s approach to the evidence of the appellant’s mental condition. The court also found that the aggregate sentence was not manifestly excessive, given the appellant’s abuse of trust and the need for general deterrence. The court emphasised the gravity of the offences committed by the appellant and the need for appropriate punishment to reflect society’s condemnation of such conduct. The court also noted that the appellant’s good character was a prerequisite to his registration as a health practitioner and that the offences involved gross breaches of his ethical obligations. However, the court found that the aggregate sentence was appropriate, given the appellant’s repeated offending and the need for general deterrence.

In conclusion, the court dismissed the appeal against sentence, finding that the aggregate sentence was not manifestly excessive and that the sentencing judge had not erred in his approach to the evidence of the appellant’s mental condition. The court emphasised the need for appropriate punishment and the role of general deterrence in sentencing for offences of this nature. The appeal was dismissed, and the original sentence was upheld.

Orders