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Lee-Kong v Brunnen

Lee-Kong v Brunnen

Case [2022] WASC 150 5 May 2022

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LEE-KONG -v- BRUNNEN [2022] WASC 150
CORAM:   SOLOMON J
HEARD:   24 JANUARY 2022
DELIVERED          :   5 MAY 2022
PUBLISHED           :   5 MAY 2022
FILE NO/S:   SJA 1065 of 2021
BETWEEN:   JOHN GORDON LEE-KONG
Appellant
AND
LEE WILLIAM BRUNNEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T HALL
File Number            :   PE 33831/2020

Catchwords:

Criminal law - Appeal against sentence - Leave to appeal - Question of remorse - Demonstration of remorse - Limitations of an appellate court in reviewing the determination of a sentence - Where a police officer believes they are pursuing their duties of law enforcement - Dangerous driving in circumstances of aggravation occasioning grievous bodily harm - Whether the imposition of a fine was manifestly inadequate - Where no decisions are directly comparable to the case at hand - Whether the quantum of a fine is adequate in terms of the applicable sentencing principles - Where a sentence of imprisonment is not the only appropriate sentence

Legislation:

Road Traffic Act 1974 (WA), s 59, s 59(1), s 59(1)(b), s 60, s 61, s 61A
Road Traffic Amendment (Driving Offences) Act 2018 (WA)
Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6(1)
Sentencing Act 1995 (WA), s 6, s 6(4), s 9(6), s 39(2), s 39(3), s 53, s 53(1), s 76, s 88

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	N T L John
Respondent	:	L B Black

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Tindall Gask Bentley Lawyers

Case(s) referred to in decision(s):

Abeyakoon v Brown [2011] WASCA 63
Attree v Randell (Unreported, Supreme Court of Western Australia, (Murray J), Library No 930397, 19 July 1993)
Barron v State of Western Australia [2010] WASCA 27
Basham v City of Joondalup [No 2] [2016] WASC 120
Day v The Queen [2001] WASCA 284
Dunjey v Cross [2002] WASCA 14
Fogg v State of Western Australia [2011] WASCA 11
James v The Queen [1985] WASC 42
Johnson v Vander Zanden [2021] WASCA 27
Kershaw v State of Western Australia [2014] WASCA 111
Moore v Russell [2020] WASC 413
Munda v Western Australia (2013) 249 CLR 600
R v Chancellor [2019] ACTSC 191
R v Starr [2002] VSCA 180
Ryan v The Queen (2001) 206 CLR 267
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The Queen v Shannon (1979) 21 SASR 442
The State of Western Australia v Egeland [2018] WASCA 228
The State of Western Australia v Molloy [2020] WASCA 123
The State of Western Australia v Murray [2020] WASCA 190
Thomas v Schwager (Unreported, Supreme Court of Western Australia, (Parker J), Library No 970719, 18 December 1997)
Timbrell v Western Australia [No 2] [2013] WASCA 269
Veen v The Queen (No 2) (1988) 164 CLR 465

SOLOMON J:

Introduction

This is the State's appeal against a sentence imposed on the respondent who on 4 August 2021,…

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 Lee-Kong v Brunnen

Details

AGLC: Lee-Kong v Brunnen [2022] WASC 150
Case: [2022] WASC 150
Decision Date

CaseChat Overview and Summary

In the appeal, the State argued that the sentence of $5,000 imposed by the learned magistrate was manifestly inadequate. The appeal was allowed on the ground that the sentence was manifestly inadequate. The sentence was set aside and the matter was remitted to the Magistrates Court to resentence the respondent. The court held that a fine was the appropriate sentence and that it should be significantly more than $5,000. The matter was to be relisted to allow evidence and submissions to be advanced in respect of the matters in s 53 of the Sentencing Act.

The court also considered the issue of the respondent's remorse. The court held that the learned magistrate's conclusion that the respondent was remorseful was not in error and that it was not appropriate to review the magistrate's evaluation of the respondent's remorse. The court held that remorse is an elusive and nuanced feature of the human psyche and that its existence or absence is more likely to be perceived and better understood by the trial magistrate than by the clinical appellate analysis.

Orders