Pang v The Queen - [2018] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0062

JOHN PANG	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2018
DATE OF JUDGMENT:	2 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 5
JUDGMENT APPEALED FROM:	DPP v Pang (Unreported, County Court of Victoria, Judge Gamble, 20 February 2017)

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CRIMINAL LAW – Sentence – Appeal – Recklessly causing serious injury – Delay – Whether sentencing judge denied full benefit of mitigation – Rehabilitation during period of delay – Error established – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Richter QC	Bernard Crosbie
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
SANTAMARIA JA:

Introduction

In the early hours of 2 May 2013, the appellant, John Pang, forcefully struck another man, Bol Athian, to the side of the head with a hammer, causing him very severe, life-threatening injuries.

On 4 March 2016, the appellant pleaded guilty in the County Court to one charge of recklessly causing serious injury to Mr Athian.[1]
[1]Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.

Following a plea, during which certain factual matters were disputed, the judge sentenced the appellant on 20 February 2017 to be imprisoned for four years, and fixed a non-parole period of two years.[2]
[2]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the appellant’s plea of guilty, he would have imposed a sentence of five years’ imprisonment with a non-parole period of three years.

On 4 August 2017, Priest JA granted the appellant leave to appeal against sentence[3] on a single ground as follows:[4]

In deciding to limit the significance of the issue of delay on the basis that:
(a) the [appellant] had left the jurisdiction; and
(b) the [appellant] failed to resolve the matter earlier,
the Learned Sentencing Judge erroneously and unduly restricted the appropriate recognition to be given to the issue of delay.

[3]See Criminal Procedure Act 2009, s 315(1)(a).

[4]Priest JA refused leave to appeal on a further ground:

1. The Learned Sentencing Judge erred in his determination of the factual issue relating to the Applicant’s perception of danger by:

(a)proceeding on the basis that the CCTV footage demonstrated that there was insufficient time for the Applicant’s version to be possible; and

(b)by proceeding on the basis that it was very significant that Kelly Lam did not give a similar account to the Applicant in her statement to police.

Having now heard detailed argument, we are of the view that the essential complaint made in the ground has been made out. We would, however, dismiss the appeal, since we are of the view that no different sentence should be imposed.[5]
[5]See Criminal Procedure Act 2009, s 281(1)(b).

The circumstances of the offence

For present purposes, the circumstances of the offending are sufficiently described in the judge’s reasons for sentence:

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 Pang v The Queen

Details

AGLC: Pang v The Queen [2018] VSCA 5
Case: [2018] VSCA 5
Decision Date: 2 February 2018

CaseChat Overview and Summary

The case of Pang v The Queen involved an appellant who had been found guilty of recklessly causing serious injury to another person. The appellant sought to appeal his sentence, claiming that the sentencing judge did not fully consider the benefits of the time he had spent in custody before his sentencing. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the sentencing judge erred by failing to take into account the appellant's rehabilitation during the period of delay between the commission of the offence and the sentencing. The court was tasked with determining if the appellant's rehabilitation, which occurred during this delay, should have been considered as part of the mitigation in sentencing. The court had to evaluate if the sentencing judge's failure to do so constituted a significant error that warranted an appeal.

In examining the appeal, the court held that the sentencing judge did indeed fail to give proper weight to the appellant's rehabilitation during the delay. The court found that this omission was a significant error, as the appellant's rehabilitation could have been a relevant mitigating factor. However, the court concluded that this error did not deprive the appellant of a fair sentencing process. Given the nature of the error and its impact on the overall sentence, the appeal was ultimately dismissed by the court.

No further orders were made by the court in light of the appeal being dismissed.

Orders