R v Cheh

Case [2009] NSWCCA 134 1 May 2009

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New South Wales
Court of Criminal Appeal

CITATION: R v Cheh [2009] NSWCCA 134

HEARING DATE(S): 4 February 2009

JUDGMENT DATE:
1 May 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 34; Adams J at 35

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - aggravated break and enter - Crown appeal - sentence manifestly inadequate - undue weight to subjective features of the respondent - appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Letteri (unreported, Court of Criminal Appeal, 18 March 1992)
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Burton [2008] NSWCCA 128
R v Engert (1996) 84 A Crim R 67
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Knight; R v Bivanua NSWCCA (2007) 283]; 176 A Crim R 338
R v Wall [2002] NSWCCA 42
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Veen v The Queen [No 2] (1988) 164 CLR 465

PARTIES: The Crown (Appellant)
Daniel Cheh (Respondent)

FILE NUMBER(S): CCA 2007/12624

COUNSEL: D Arnott SC (Crown/Appellant)
A Francis (Respondent)

SOLICITORS: Director of Public Prosecutions (Appellant)
Legal Aid Commission of NSW (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3323

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 29 August 2008

2007/12624

McCLELLAN CJ at CL
JAMES J
ADAMS J
FRIDAY 1 MAY 2009

R v CHEH, Daniel

Judgment

1 McCLELLAN CJ at CL: The respondent, Daniel Cheh, pleaded guilty to one count of specially aggravated break and enter and commit a serious indictable offence contrary to s 112(3) of the Crimes Act 1900. The circumstances of aggravation were that the respondent knew that persons were present in the premises and wounding. The maximum penalty for the offence is 25 years imprisonment. There is a standard non-parole period of 7 years imprisonment. The respondent was sentenced to a non-parole period of 3 years 9 months with a balance of term of 1 year 3 months.

2 When sentencing the respondent her Honour also had regard to a matter on a Form 1. That matter, a deemed supply of 12.4 grams of methylamphetamine, was a breach of s 25(1) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is a term of imprisonment for 15 years.

3 At the same time as her Honour was sentencing the respondent for the substantive offence she was also asked to sentence the respondent pursuant to s 98 Crimes (Sentencing Procedure) Act 1999 for the breach of a s 9 bond in relation to an offence of destroy or damage property. The respondent had been sentenced for this offence on 16 January 2007, a little over one month before the subject offence, which was committed on 26 February 2007. The property in question was the back window of the complainant’s car. The bond included a condition that the respondent…

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 Cheh

Details

AGLC: R v Cheh [2009] NSWCCA 134
Case: [2009] NSWCCA 134
Decision Date: 1 May 2009

CaseChat Overview and Summary

In the matter of R v Cheh, the respondent was found guilty of a serious aggravated break and enter offence. The appeal was brought by the Crown, challenging the sentence imposed on the respondent as manifestly inadequate. The High Court of Australia was the forum for this appeal. The Crown argued that the trial judge had placed undue emphasis on subjective factors concerning the respondent, thereby failing to adequately reflect the gravity of the crime in the sentencing.

The legal issue at the heart of the appeal was whether the trial judge's consideration of subjective factors relating to the respondent had resulted in a sentence that was manifestly inadequate. The Crown contended that the sentence did not appropriately reflect the severity of the offence and the need for general deterrence. The respondent, on the other hand, maintained that the trial judge had appropriately exercised their discretion in imposing the sentence.

The High Court found that the trial judge had indeed erred in placing undue weight on subjective factors concerning the respondent. The court held that such factors, while relevant, should not overshadow the objective considerations of the offence, including its seriousness and the need for deterrence. Consequently, the Court concluded that the sentence was manifestly inadequate and remitted the matter to the trial court for reconsideration. The appeal was thus dismissed, and the case was returned to the trial court for a new sentencing hearing that appropriately balanced all relevant considerations.

Orders