R v Ang

Case [2014] ACTCA 17

COURT OF APPEAL
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

THE QUEEN v ANG

Medium Neutral Citation:

[2014] ACTCA 17

Hearing Date(s):

10 February 2014

DecisionDate:

30 May 2014

Before:

Refshauge, Penfold and Ross JJ

Category:

Appeal from Supreme Court (criminal)

Catchword:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – Crown appeal against making of non-conviction order – one offence of act of indecency without consent – offender foreign national studying at Australian Defence Force Academy – offence committed against another cadet – extra-curial punishment – strong evidence that offender otherwise person of good character – whether impact of living in different environment in Australia constituted extenuating circumstances – whether impact of living in different environment in Australia could otherwise be taken into account by sentencing judge – no error in sentencing judge’s approach to impact on offender of living in different environment.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – grounds of appeal against sentence require either identification of specific errors or claim of manifest inadequacy or excess permitting inference of error – appeal grounds relating to judicial failure to pay proper regard or to give adequate weight to particular matters do not properly invoke either ground of appellate intervention – claim of manifest inadequacy or excess should not be framed by reference to inappropriate weight given to particular circumstances but to inadequacy or excess having regard to particular circumstances.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – nature of appeal process – appeal court not entitled simply to substitute its own opinion – sentence not manifestly inadequate – appeal dismissed.

EVIDENCE – General – judicial notice – claim that offence involved breach of trust – appellant unable to articulate circumstances of trust or nature of breach – judicial notice not to be taken of proposition unable to be clearly formulated to court.

Legislation cited:

Crimes Act1900 (ACT)

Crimes (Sentencing) Act 2005 (ACT)

Cases cited:

Barbaro v The Queen (2014) 305 ALR 323

Bugmy v The Queen (2013) 87 ALJR 1022
House v The King (1936) 55 CLR 499

R v Osenkowski (1982) 30 SASR 212

Decision:

The appeal is dismissed.

Parties:

The Queen ( Appellant)

Young Chuean Ang ( Respondent)

File Number(s):

SCC 178 of 2012

ACTCA 31 of 2013

THE COURT:

Introduction

  1. On 6 June 2013 Yong Chuean Benedict Ang was sentenced in the Supreme Court, having previously been found guilty by a jury of one count of act of indecency without consent under s 60 of the Crimes Act1900 (ACT). The trial judge declined to record a conviction, but ordered Mr Ang to sign a good behaviour undertaking for a period of eighteen months, with a supervision condition.

  1. The Crown has appealed against that sentence.

  1. The sentencing judge described the offence as follows:

I am satisfied that in the early hours of 6 May…

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Details
AGLC
R v Ang [2014] ACTCA 17
Case
[2014] ACTCA 17
Decision Date

CaseChat Overview and Summary

This matter came before the Court of Appeal of the Supreme Court of the Australian Capital Territory, with Refshauge, Penfold and Ross JJ presiding. The Crown appealed against a non-conviction order made by a sentencing judge in favour of the respondent, who had pleaded guilty to one offence of an act of indecency without consent. The respondent was a foreign national studying at the Australian Defence Force Academy and the offence was committed against another cadet.

The primary legal issues before the Court of Appeal were whether the sentencing judge had erred in their approach to the impact of the respondent living in a different environment in Australia as a potential extenuating circumstance, and whether this impact could otherwise be taken into account by the sentencing judge. The Crown also contended that the sentence was manifestly inadequate. The Court considered the grounds of appeal, noting that appeals against sentence require the identification of specific errors or a claim of manifest inadequacy or excess from which error can be inferred, rather than simply disagreeing with the weight given to particular matters.

The Court of Appeal found no error in the sentencing judge’s approach to the impact of the respondent’s different environment. It held that an appeal court is not entitled to substitute its own opinion for that of the sentencing judge unless there is a demonstrable error. The Court concluded that the sentence imposed was not manifestly inadequate, and therefore the grounds of appeal were not made out. The Court also addressed a submission regarding judicial notice of a breach of trust, finding that such notice could not be taken of a proposition that was not clearly articulated to the court.

The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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