Gleeson JA at [1]; Adams J at [71]; Beech-Jones J at [72]
Decision:
(1) The applicant be granted leave to appeal.
(2) The appeal be dismissed.
Catchwords:
CRIMINAL LAW – appeal – sentencing – whether sentencing judge erred in finding no expression of remorse – reliance on statements by offender contained in tendered reports as evidence of remorse – weight, if any, to be given to such material where offender does not give evidence – whether sentence manifestly excessive – whether regard may be had to notional starting point where it is not contended that the reduction for a guilty plea is excessive – sentence not plainly unjust or unreasonable
Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):
2013/346130
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
05 June 2014
Before:
Frearson DCJ
File Number(s):
2013/346130
Judgment
GLEESON JA: The applicant, Steven Mun, seeks leave to appeal against a sentence imposed upon him in the District Court by Frearson DCJ on 5…
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
AGLC
Mun v R [2015] NSWCCA 234
Case
[2015] NSWCCA 234
Decision Date
CaseChat Overview and Summary
The appeal heard by the court involved a sentencing decision made in a criminal matter. The appellant, Mun, challenged the sentence imposed by the sentencing judge, arguing that there was an error in the judge's finding that Mun had not expressed remorse for the crime committed. Mun contended that statements contained in reports tendered by the defence should be considered as evidence of remorse. The court also had to determine the weight, if any, that could be given to such material when the offender does not give evidence. Additionally, the appellant argued that the sentence was manifestly excessive, and whether the notional starting point could be considered when the reduction for a guilty plea was not contended to be excessive. The final issue was whether the sentence was plainly unjust or unreasonable.
The court addressed the issue of whether there was an error in the sentencing judge's finding that the appellant had not expressed remorse. It was noted that the appellant had not given evidence and therefore the statements contained in the reports could not be relied upon as evidence of remorse. The court held that the sentencing judge was entitled to find that the appellant had not expressed remorse based on the evidence before the court. Regarding the sentence, the court found that it was not plainly unjust or unreasonable, and that the notional starting point could be considered even if the reduction for a guilty plea was not contended to be excessive. The court concluded that the sentence imposed was within the range of appropriate sentences for the offence committed.
The appeal was dismissed, and the original sentence was upheld. The court found that the sentencing judge had not erred in finding that the appellant had not expressed remorse, and that the sentence imposed was not manifestly excessive. The court held that the sentence was within the range of appropriate sentences for the offence committed, and that the notional starting point could be considered even if the reduction for a guilty plea was not contended to be excessive. The court also found that the sentence was not plainly unjust or unreasonable, and therefore the appeal was dismissed. The final orders of the court were that the appeal be dismissed, and that the sentence imposed by the sentencing judge be upheld.