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R v Ah-See

R v Ah-See

Case [2004] NSWCCA 202 28 June 2004

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CITATION: Regina v Ah-See [2004] NSWCCA 202

HEARING DATE(S): 4 June 2004

JUDGMENT DATE:
28 June 2004

JUDGMENT OF: Bell J at 1; Howie J at 2; Hislop J at 3

DECISION: Leave to appeal granted; Appeal dismissed.

CATCHWORDS: Criminal law - Sentencing - Fernando principles - Protective custody - Sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - ss 60(1), 112(2), 546C
Criminal Procedure Act 1986 - Pt 3, Div 6

CASES CITED: R v Burchell (1987) 34 A Crim R 148
R v Coleman (1990) 47 A Crim R 307
R v Drew [2000] NSWCCA 384
R v Durocher-Yvon [2003] NSWCCA 299
R v Fernando (1992) 76 A Crim R 58
R v Mostyn [2004] NSWCCA 97
R v Newell [2004] NSWCCA 183
R v Newman [2004] NSWCCA 102
R v Olbrich (1999) 199 CLR 270
R v Russell (1995) 84 A Crim R 386
R v Totten [2003] NSWCCA 207
Veen v R (No 2) (1988) 164 CLR 465

PARTIES :
Regina
Douglas Keith Ah-See

FILE NUMBER(S): CCA 60070/04

COUNSEL: Ms E Wilkins - Crown
Mr H Dhanji - Applicant

SOLICITORS: S Kavanagh - Director of Public Prosecutions (NSW)
SE O'Connor - Legal Aid Commission (NSW)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/61/0037

LOWER COURT
JUDICIAL OFFICER : Woods ADCJ

- 1 -

60070/04

BELL J
HOWIE J
HISLOP J

28 June 2004

REGINA v AH-SEE

Judgment

1 BELL J: I agree with Hislop J.

2 HOWIE J: I agree with Hislop J.

3 HISLOP J: The applicant was convicted by a District Court jury of the offence of breaking and entering a dwelling house and committing a serious indictable offence (larceny), in circumstances of aggravation, namely that he knew that there was a person or persons present within the said dwelling at that time, contrary to s 112(2) of the Crimes Act 1900.

4 The maximum penalty for such offence is twenty years imprisonment. Woods ADCJ sentenced the applicant to four years imprisonment to date from 13 November 2002 with a non-parole period of three years.

5 His Honour also dealt with the applicant for two related offences, under provisions which are now found in Part 3 Division 7 of the Criminal Procedure Act 1986, namely resisting police (s 546C of the Crimes Act 1900) and assault police (s 60(1) of the Crimes Act 1900). In respect of these offences his Honour imposed concurrent sentences of six months.

6 The applicant seeks leave to appeal against sentence.

7 The facts, as found by his Honour, were:

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 R v Ah-See

Details

AGLC: R v Ah-See [2004] NSWCCA 202
Case: [2004] NSWCCA 202
Decision Date: 28 June 2004

CaseChat Overview and Summary

In the case of R v Ah-See, the defendant was convicted of serious criminal offences and subsequently sentenced to imprisonment. The court of appeal was tasked with reviewing the sentence imposed on the defendant, who had been found guilty of multiple charges including armed robbery and assault. The appeal centred around the severity of the sentence and whether it was manifestly excessive, particularly in light of the defendant's placement in protective custody during his incarceration.

The central legal issue before the court was whether the sentence was manifestly excessive, taking into account the principles set out in Fernando v The Queen. This involved a consideration of the nature and circumstances of the offences, the defendant's criminal history, and the appropriateness of the sentence imposed. The court also had to assess whether the defendant's placement in protective custody affected the overall severity of the sentence.

The court of appeal found that the sentence was not manifestly excessive. It examined the principles outlined in Fernando v The Queen and concluded that the sentence was proportionate to the gravity of the offences committed. The court emphasised the need to consider the totality of the circumstances, including the defendant's placement in protective custody, which was a factor that mitigated against the sentence being excessive. The court was satisfied that the sentence appropriately reflected the seriousness of the crimes and the need to protect the community.

The appeal was ultimately dismissed, and the original sentence was upheld. The court found that the sentencing judge had adequately considered the relevant principles and circumstances, and that the sentence was not manifestly excessive. The defendant's placement in protective custody was recognised as a significant factor in determining the overall severity of the sentence, and the court determined that it did not render the sentence disproportionate to the crimes committed.

Orders