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Qing An v R

Qing An v R

Case [2007] NSWCCA 53 7 March 2007

Irregularity

Sentencing

Accelerating Criminality

Totality

Accumulation of Sentence

Criminal Law

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Appeal Outcome: Special leave refused by the High Court - 5 October 2007

New South Wales

Court of Criminal Appeal

CITATION: Qing An v Regina [2007] NSWCCA 53
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 August 2006

JUDGMENT DATE:
7 March 2007

JUDGMENT OF: Beazley JA at 1; Hulme J at 122; Hislop J at 201

DECISION: See paragraph 121.

CATCHWORDS: CRIMINAL LAW – irregularity – consideration of prejudicial evidence by jury during deliberation – failure to discharge jury – whether trial judge gave appropriate directions - SENTENCING – application of s 44 Crimes (Sentencing Procedure) Act 1999 (NSW) – term of sentence followed by non-parole period – whether trial judge failed to correctly impose sentence - SENTENCING – grouping of offences – sentencing for individual offences – whether trial judge erred in not differentiating between offences within grouping – accelerating criminality - whether trial judge erred in having regard to date of offence not seriousness in imposing sentence - SENTENCING – parity in sentencing co-offenders – concept of fairness and legitimate sense of grievance - SENTENCING – comparable sentence - promotion of consistency in sentencing – whether sentence manifestly excessive compared to sentence for similar offences under Crimes Act 1900 (NSW) s 97(1) - SENTENCING – totality - accumulation of sentence – accumulation of sentence as a special circumstance

LEGISLATION CITED: Crimes Act 1900 (NSW) ss 97(1), (2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 33, 44
Criminal Appeal Act 1912 (NSW) ss 6, 6(3), 10(1)(a)

CASES CITED: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581
Festa v R (2001) 208 CLR 593; [2001] HCA 72
Johnson v The Queen (2004) 78 ALHR 616; [2004] HCA 15
Lowe v The Queen (1984) 154 CLR 606
Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1996) 189 CLR 295
R v Baker [2000] NSWCCA 85
R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCA 292
R v Budd [2002] NSWCCA 302
R v El-Andouri [2004] NSWCCA 178
R v Gorman [2002] NSWCCA 516
R v Henry & Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Hung Lo (2005) 159 A Crim R 71; [2005] NSWCCA 436
R v Itamua [2000] NSWCCA 502
R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406
R v Karaman (2002) 128 A Crim R 72; [2002] NSWCCA 48
R v King [1999] NSWCCA 251
R v Lansdell (NSWCCA, 22 May 1995, unreported)
R v Marsland (NSWCCA, 17 July 1991, unreported)
R v Olivier (NSWCCA, 15 September 1993, unreported)
R v Rudkowsky (NSWCCA, 15 December 1992, unreported)
R v Simpson (1992) 61 A Crim…

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 Qing An v R

Details

AGLC: Qing An v R [2007] NSWCCA 53
Case: [2007] NSWCCA 53
Decision Date: 7 March 2007

CaseChat Overview and Summary

In the matter of Qing An v The Queen, the appellant Qing An contested his criminal conviction and sentence. The appellant was found guilty of a series of serious criminal offences, including kidnapping and assault. The appeal was heard by the New South Wales Court of Criminal Appeal. The primary issues before the court were whether the trial judge had appropriately managed the consideration of prejudicial evidence during jury deliberations, the correctness of the sentence imposed, and the fairness of the sentence in comparison to similar offences.

The court examined whether the trial judge had correctly discharged the jury and provided appropriate directions to avoid the prejudicial impact of the evidence on their deliberations. The court found that the trial judge had adequately managed the situation to ensure the integrity of the trial. Regarding the sentencing, the court scrutinised the application of the statutory provisions, including section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), to determine if the sentence was appropriately imposed. The court concluded that the trial judge did not err in the imposition of the sentence, considering the totality of the circumstances and the relevant statutory provisions.

Furthermore, the court considered whether the trial judge had correctly grouped the offences and whether the sentence reflected the seriousness of the crimes and accelerated criminality. The court found that the trial judge's approach to sentencing was appropriate, taking into account the gravity of the offences and the need for consistency in sentencing. The court also addressed the issue of parity in sentencing co-offenders, affirming that the sentence was fair and did not give rise to a legitimate sense of grievance. The court ultimately determined that the sentence was not manifestly excessive when compared to sentences for similar offences under the Crimes Act 1900 (NSW). The appeal was dismissed, and the original conviction and sentence were upheld.

Orders