Koo v The Queen - [2011] VSCA 341

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0296

MOY CHOON KOO
	Applicant
v
THE QUEEN
	Respondent

---

JUDGES	MAXWELL P and HARPER JA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 October 2011
DATE OF JUDGMENT	20 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 341
JUDGMENT APPEALED FROM	DPP v Koo (Unreported, County Court of Victoria, Judge Wood, 18 August 2010)

---

CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Leave refused by a single judge – Election to have application determined by the Court of Appeal – Sentencing error conceded by Crown – Whether less severe sentence would be imposed – Ill health – Whether up-to-date health information would justify sentence reduction – No significant deterioration – Leave granted but appeal dismissed – Criminal Procedure Act 2009 ss 280(2), 281(1)(b), 315(2).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M J Croucher	Victoria Legal Aid
For the Crown	Ms L Di Pietrantonio	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

After a trial in the County Court the applicant was convicted of two counts of obtaining a financial advantage by deception and six counts of theft.

He was sentenced to an aggregate term of four years’ imprisonment with a non‑parole period of two years and six months. He applied for leave to appeal against the sentence on two grounds. One concerned a failure of the sentencing judge to identify the notional constituent sentences and notional orders for concurrency and cumulation that went to make up the aggregate sentence. Before Weinberg JA, who heard the application, that ground was conceded to be reasonably arguable. There could have been no doubt that the ground would succeed. As Weinberg JA said, the sentencing judge had manifestly failed to comply with the requirements as enunciated in R v Felton[1] and R v Grossi.[2]
[1](2007) 16 VR 214 (‘Felton’).
[2](2008) 23 VR 500.

The second ground advanced before Weinberg JA was that the aggregate sentence and the non‑parole period were manifestly excessive. His Honour rejected that ground. His Honour went on to refuse leave to appeal on the basis of s 280(2) of the Criminal Procedure Act 2009 (Vic). As his Honour pointed out in his reasons, an application for leave to appeal may be refused even if there is a reasonably arguable ground of appeal:

if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.

The applicant has exercised his right of election to renew the application for leave to appeal before this bench of two judges.[3] On the application, counsel has not persisted with the ground of manifest excess, and has instead addressed the consequences of the Crown’s concession in relation to the Felton[4] error.
[3]Criminal Procedure Act 2009 (Vic) s 315(2).
[4](2007) 16 VR 214.

Counsel provided to the Court a bundle of information about the medical condition…

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 Koo v The Queen

Details

AGLC: Koo v The Queen [2011] VSCA 341
Case: [2011] VSCA 341
Decision Date: 20 October 2011

CaseChat Overview and Summary

The case of Koo v The Queen involves the defendant, Mr Koo, who appealed against the sentence imposed by the Court of Appeal. The primary issue in this case was whether the appeal against the sentence should be allowed and if a less severe sentence would be imposed, considering the defendant’s ill health and the availability of up-to-date health information. Initially, the single judge denied the application for leave to appeal against the sentence. However, Mr Koo elected to have his application determined by the Court of Appeal.

The legal issues that the Court of Appeal had to decide included whether the conceded sentencing error warranted a reduction in the sentence and whether the defendant’s current health status justified a less severe sentence. The Crown admitted to a sentencing error, which raised the question of whether this error alone would lead to a less severe sentence. Additionally, the Court considered whether the up-to-date health information of the defendant would significantly impact the sentencing decision. The Court had to weigh the seriousness of the offence against the defendant’s health conditions to determine if a different sentence would be appropriate.

In deciding the appeal, the Court of Appeal granted leave to appeal but ultimately dismissed the appeal. The Court found that despite the conceded sentencing error, there had not been a significant deterioration in the defendant’s health that would justify a reduction in the sentence. The Court concluded that the sentence imposed was appropriate given the circumstances. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders