Liao v The Queen - [2007] NSWCCA 132

New South Wales
Court of Criminal Appeal

CITATION: LIAO v R [2007] NSWCCA 132

HEARING DATE(S): 2 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 19; Hoeben J at 20

EX TEMPORE JUDGMENT DATE: 2 April 2007

DECISION: 1. Grant leave to appeal; 2. Appeal dismissed.

CATCHWORDS: Appeal against sentence - rob landlady armed with a weapon - reference to “gratuitous” violence - whether a breach of De Simoni principle - whether sentencing judge erred in finding the offender breached a degree of trust

LEGISLATION CITED: Crimes Act 1900

CASES CITED: De Simoni (1981) 147 CLR 383
Henry (1999) 46 NSWLR 346

PARTIES: Han Liao (Appl)
The Crown

FILE NUMBER(S): CCA 2007/35

COUNSEL: T J Golding (Appl)
W Dawe WC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0184

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 15 June 2006

2007/35

McCLELLAN CJ at CL
HULME J
HOEBEN J
MONDAY 2 APRIL 2007

LIAO, Han v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count of robbery when armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is twenty years imprisonment. He was sentenced to a non-parole period of two years and nine months to commence on 8 December 2005 and expire on 7 September 2008. The sentencing judge imposed a further term of three years and three months making a total sentence of six years.

2 The applicant pleaded guilty at the earliest opportunity. There was no issue as to the relevant facts which were included on a fact sheet which read as follows:

“The victim Michelle Ho and her daughter Eva Kwok and the offender Han Liao all reside at the premises 18 McArthur Street Ultimo. Mrs Ho is the owner occupier of the premises and lives there with her daughter Kwok whilst the offender is a tenant. The offender occupies the bedroom located on the third (top) level of the three-storey townhouse. Each bedroom can be locked individually.

At about 10.15 am Thursday 8 October 2005 the offender went to Ho’s bedroom located on the second floor and spoke to her about fixing a broken window in his bedroom. The offender returned to his bedroom whilst Ho entered the offender’s bedroom several minutes later to look at the window.

As Ho entered the room the offender held a black handled kitchen knife in his right hand and a wooden rolling pin in his left hand. The offender placed the blade of the knife against Ho’s neck and said, ‘I don’t want to hurt you, all I want is money, please don’t scream.’

Whilst the knife was placed against Ho’s neck the offender has demanded her to hand over money. The victim screamed and the offender fearing Kwok would hear used the rolling pin and hit Ho once connecting…

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 Liao v The Queen

Details

AGLC: Liao v The Queen [2007] NSWCCA 132
Case: [2007] NSWCCA 132
Decision Date: 2 April 2007

CaseChat Overview and Summary

In the case of Liao, the appellant appealed against his sentence following a conviction for robbing a landlady while armed with a weapon. The central issue before the court was whether the sentencing judge's reference to "gratuitous" violence constituted a breach of the principle articulated in De Simoni, and whether the sentencing judge erred in finding that the offender breached a degree of trust. The case was heard in the High Court of Australia, which was asked to determine the validity of the sentencing judge's approach and the implications for the appellant's sentence.

The legal issues before the court involved the interpretation and application of the De Simoni principle, which pertains to the use of aggravating factors in sentencing, and the concept of a breach of trust. The court was required to determine whether the sentencing judge's reference to "gratuitous" violence constituted an improper consideration of an aggravating factor, and whether this amounted to a breach of the De Simoni principle. Additionally, the court had to consider whether the sentencing judge's finding that the offender breached a degree of trust was supported by the evidence and consistent with legal principles.

The High Court concluded that the sentencing judge's reference to "gratuitous" violence did not breach the De Simoni principle, as it was not an improper consideration of an aggravating factor but rather a legitimate factor in assessing the appellant's culpability. The court held that the sentencing judge's finding of a breach of trust was supported by the evidence and consistent with legal principles. Therefore, the court found no error in the sentencing judge's approach, and the appeal against sentence was dismissed. The High Court affirmed the original sentence imposed on the appellant, upholding the sentencing judge's assessment of the aggravating factors and the breach of trust in this case.

Orders