Leung, Simon Yuk v The Queen - [2014] NSWCCA 44

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LEUNG, Simon Yuk v R [2014] NSWCCA 44
Hearing dates: 1 April 2014
Decision date: 07 April 2014
Before: Hoeben CJ at CL at [1];
Adams J at [2];
Hall J at [3]
Decision:
(1) Leave to appeal against the sentences imposed by the District Court on 26 July 2013 be granted.
(2) Appeal allowed.
(3) The applicant be re-sentenced as follows:
(i) In respect of the offence of reckless wounding contrary to s 35(4) Crimes Act 1900, the applicant is re-sentenced to a term of imprisonment comprising a non-parole period equivalent to the period of imprisonment served by the applicant, being a period of 8 months 13 days commencing on 26 July 2013 and to expire on 7 April 2014 with a balance of term of 3 months and 18 days to commence on 8 April 2013 and to expire on 25 July 2014.
(ii) In respect of the offence of possess prohibited weapon contrary to s 7(1) Weapons Prohibition Act 1998, the applicant be directed pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 to enter into a good behaviour bond for a period of 1 year from 7 April 2014.

Catchwords: CRIMINAL LAW - sentence appeal - application for leave - one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900 - one count of possess a prohibited weapon contrary to s 7(1) of the Weapons Prohibitions Act 1998 - sentence in relation to the prohibited weapons offence was manifestly excessive - sentencing judge erred in concluding that the only appropriate sentence in relation to the prohibited weapons offence was one of imprisonment - sentencing judge erred in failing to take into account the applicant's psychiatric condition when assessing objective seriousness of the offence and the impact of a custodial sentence on the applicant - leave granted - appeal allowed - sentence quashed and set aside - applicant re-sentenced
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999 Weapons Prohibition Act 1998
Cases Cited: Pearce v R (1998) 194 CLR 610
R v George (2004) 149 A Crim R 38
R v Hemsley [2004] NSWCCA 228
R v Israil [2002] NSWCCA 255
R v Zamagias [2002] NSWCCA 17
SGJ v R; KU v R (2009] NSWCCA 258
Category: Principal judgment
Parties: Simon Yuk Leung (Applicant)
Regina (Respondent)
Representation: Counsel:
H Dhanji SC; M Johnston (Applicant)
S Herbert (Respondent)
Solicitors:
Watsons Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/368216
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-07-26 00:00:00

Before:

Sorby DCJ

File Number(s):

2012/368216

Judgment

HOEBEN CJ at CL: I agree with Hall J.

ADAMS J: I agree with Hall J.

HALL J: The applicant by way of Notice dated 28 November 2013, seeks leave to appeal against a total sentence of 28 months with an effective non-parole period of 18 months imposed following pleas of guilty to two counts, namely:

(i) A…

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.

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Details

Case: [2014] NSWCCA 44
Decision Date: 07 April 2014

CaseChat Overview and Summary

In the matter of Simon Yuk Leung, the applicant, and the Crown, the respondent, the High Court of Australia was called upon to review the sentence imposed by the lower court. The applicant had been convicted on two counts: one for reckless wounding in breach of section 35(4) of the Crimes Act 1900, and another for possessing a prohibited weapon, a violation of section 7(1) of the Weapons Prohibitions Act 1998. Leung appealed against the severity of his sentence, particularly the term of imprisonment for the prohibited weapons offence, arguing that it was manifestly excessive and that the sentencing judge had failed to consider his psychiatric condition adequately.

The primary legal issue before the court was whether the sentence imposed for the prohibited weapons offence was appropriate. The court also needed to determine if the sentencing judge had erred in not considering Leung's psychiatric condition when assessing the gravity of the offence and the potential impact of imprisonment on him. The appeal hinged on whether these errors warranted the grant of leave to appeal and the subsequent allowance of the appeal.

The court found that the sentence for the prohibited weapons offence was indeed manifestly excessive, and the sentencing judge had erred by not taking Leung's psychiatric condition into account when assessing the seriousness of the offence and the impact of a custodial sentence. Consequently, the court granted leave for the appeal, allowed the appeal, and quashed the sentence. The applicant was then re-sentenced, reflecting the court's considerations of his psychiatric condition and the need for a proportionate sentence.

Orders