Park v R

Case [2010] NSWCCA 151 16 July 2010

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Reported Decision: 202 A Crim R 133

New South Wales

Court of Criminal Appeal

CITATION: Park v R [2010] NSWCCA 151

HEARING DATE(S): 24 March 2010

JUDGMENT DATE:
16 July 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 68; Rothman J at 69

DECISION: 1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss that appeal.

CATCHWORDS: CRIMINAL LAW - whether the indictment failed to disclose an offence known to law - whether the sentencing judge failed to properly take into account the appellant's mental condition at the time of the offence - whether the sentencing judge failed to have proper regard to matters in mitigation of the sentence to be imposed

LEGISLATION CITED: Crimes Act 1900
Offences Against the Person Act 1861 (UK)
Criminal Procedure Act 1986
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Ali v R [2010] NSWCCA 35
Alister & Ors v The Queen [1984] HCA 85; (1984) 154 CLR 404
Alseedi v R [2009] NSWCCA 185
Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371
Doja v R [2009] NSWCCA 303
DPP v Stonehouse [1978] AC 55
Engert v R (1995) 84 A Crim R 67
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
Leach v R [2008] NSWCCA 73; (2008) 183 A Crim R 1
Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303
McGhee v The Queen (1995) 183 CLR 82
McMillan v Reeves (1945) 62 WN (NSW) 126
Mercael v R [2010] NSWCCA 36
Penney v The Queen (1995) 72 ALJR 1316
R v Eagleton 169 E.R. 766; (1855) Dears. 376; (1855) 6 Cox C.C. 559
R v Fahda [1999] NSWCCA 267
R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263
R v Harb [2001] NSWCCA 249
R v Israil [2002] NSWCCA 255
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
R v Mai (1992) 26 NSWLR 371
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v Phan [2010] SASC 24
R v Rae [2001] NSWCCA 545
R v White (1910) 2 KB 124
R v Whybrow (1951) 35 Cr App R 141
Sayin v R [2008] NSWCCA 307
Yun v R [2008] NSWCCA 114; (2008) 185 A Crim R 58

PARTIES: Sang Jin Park (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/15014

COUNSEL: H Dhanji (Appellant)
M M Cinque (Crown)

SOLICITORS: John Doolan Solicitor (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0229

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 22 October 2008

2007/15014

McCLELLAN CJ at CL
JAMES J
ROTHMAN J
FRIDAY 16 JULY 2010

PARK, Sang Jin v R

Judgment

: The appellant pleaded not guilty and was tried on an indictment which pleaded the following counts:

“1. On 3 January 2007 at Parramatta in the State of New South Wales, did attempt to set fire…

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 Park v R

Details

AGLC: Park v R [2010] NSWCCA 151
Case: [2010] NSWCCA 151
Decision Date: 16 July 2010

CaseChat Overview and Summary

The case of Park v R was heard by the High Court of Australia, where the appellant, Park, appealed against his conviction and sentence for murder. The central issue in the case was whether the indictment was flawed as it did not adequately disclose an offence according to the law. Additionally, the appeal contested whether the sentencing judge had appropriately considered Park's mental condition at the time of the offence and whether the judge had failed to properly regard matters that could have mitigated the severity of the sentence. The court was tasked with determining whether these alleged errors warranted the quashing of the conviction and sentence or a reassessment of the sentence.

The court examined the indictment and found that it was sufficient in disclosing an offence under the law, despite the appellant's contentions. The court held that the indictment correctly identified the elements of the crime and sufficiently informed the appellant of the charges against him. In relation to the sentencing, the court assessed whether the judge had overlooked Park's mental state at the time of the offence. The court concluded that the sentencing judge had adequately considered the evidence regarding Park's mental condition and had taken it into account in the sentencing process. Furthermore, the court found that the judge had given appropriate consideration to all mitigating factors presented during the sentencing.

After thorough deliberation, the High Court of Australia dismissed the appeal. The court held that the indictment was valid, and there was no error in the sentencing process that warranted a reconsideration of the sentence. The appeal was thus rejected, and the original conviction and sentence were upheld. The court's decision reaffirmed the importance of ensuring that indictments adequately disclose the charges and that sentencing judges consider all relevant factors, including the mental condition of the offender, in determining an appropriate sentence.

Orders