R v Cheng - [2016] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cheng [2016] QCA 193

PARTIES:

R
v
CHENG, Saul Matthew
(applicant)

FILE NO/S:

CA No 290 of 2015
SC No 104 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 5 November 2015

DELIVERED ON:

2 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2016

JUDGES:

Holmes CJ and Fraser and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own pleas of attempted murder and serious assault – where the applicant was sentenced to concurrent terms of 12 years imprisonment for attempted murder and two years imprisonment for serious assault – where the applicant shot the complainant with a homemade pipe gun – where the complainant was hospitalised for injuries which would have compromised her life – where the complainant continues to suffer significant psychological injuries and constant pain – where the applicant bit a police officer causing him to bleed – where the police officer was emotionally affected by the offence – where the applicant had an extensive, violent criminal history – where the applicant had chronic post-traumatic stress disorder and a significant mixed personality disorder – where the evidence of the applicant’s mental health did not suggest that the applicant lacked any relevant capacity to commit the offences – where the medical evidence was guarded about the prospects of the applicant’s rehabilitation – where, in sentencing the applicant, the sentencing judge took into account the applicant’s pleas of guilty, the circumstances of the offence and the applicant’s personal circumstances – where the sentencing judge considered the protection of the community from the risk of physical harm as a relevant sentencing consideration – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9

Channon v The Queen (1978) 33 FLR 433; [1978] FCA 16, considered
R v Forster[2002] QCA 495, considered
R v Goodger[2009] QCA 377, cited
R v Graham [2015] QCA 137, considered
R v Neumann; Ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, cited
R v Reeves[2001] QCA 91, cited

COUNSEL:

The applicant appeared on his own behalf
D C Boyle for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I agree with the reasons of Fraser JA and the order he proposes.

FRASER JA: The applicant was convicted on his pleas of guilty and sentenced to concurrent terms of 12 years imprisonment for attempted murder and two years imprisonment for serious assault. He has applied for leave to appeal against sentence on the ground that…

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 Cheng

Details

AGLC: R v Cheng [2016] QCA 193
Case: [2016] QCA 193
Decision Date: 2 August 2016

CaseChat Overview and Summary

In the case of R v Cheng, the applicant, Cheng, appealed against his sentence after being convicted on his own pleas of attempted murder and serious assault. Cheng was sentenced to concurrent terms of 12 years imprisonment for attempted murder and two years imprisonment for serious assault, with the sentencing judge considering the applicant’s pleas of guilty, the circumstances of the offence, and the applicant’s personal circumstances, including his violent criminal history and mental health conditions.

The central legal issue was whether the sentence imposed by the sentencing judge was manifestly excessive. The court had to assess whether the sentence was disproportionate to the gravity of the offences, taking into account all relevant factors, including the nature of the crimes, the harm caused to the victim, and the applicant's background. The applicant argued that the sentence was excessively harsh given his mental health issues and the potential for rehabilitation, while the prosecution maintained that the sentence was appropriate given the severity of the crimes and the need to protect the community.

The court found that the sentencing judge had properly considered the mitigating factors of Cheng's guilty pleas and his mental health conditions, but also appropriately weighed these against the significant harm caused to the victim and the need to protect the community. The court concluded that the sentence was not manifestly excessive, as it was proportionate to the gravity of the offences and took into account all relevant sentencing considerations. Therefore, the application for leave to appeal against the sentence was refused.

In light of the above, the court dismissed the application for leave to appeal against the sentence. The concurrent terms of 12 years imprisonment for attempted murder and two years imprisonment for serious assault were upheld.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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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CITATION:	R v Cheng [2016] QCA 193
PARTIES:	R v CHENG, Saul Matthew (applicant)
FILE NO/S:	CA No 290 of 2015 SC No 104 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 5 November 2015
DELIVERED ON:	2 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	23 June 2016
JUDGES:	Holmes CJ and Fraser and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own pleas of attempted murder and serious assault – where the applicant was sentenced to concurrent terms of 12 years imprisonment for attempted murder and two years imprisonment for serious assault – where the applicant shot the complainant with a homemade pipe gun – where the complainant was hospitalised for injuries which would have compromised her life – where the complainant continues to suffer significant psychological injuries and constant pain – where the applicant bit a police officer causing him to bleed – where the police officer was emotionally affected by the offence – where the applicant had an extensive, violent criminal history – where the applicant had chronic post-traumatic stress disorder and a significant mixed personality disorder – where the evidence of the applicant’s mental health did not suggest that the applicant lacked any relevant capacity to commit the offences – where the medical evidence was guarded about the prospects of the applicant’s rehabilitation – where, in sentencing the applicant, the sentencing judge took into account the applicant’s pleas of guilty, the circumstances of the offence and the applicant’s personal circumstances – where the sentencing judge considered the protection of the community from the risk of physical harm as a relevant sentencing consideration – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9 Channon v The Queen (1978) 33 FLR 433; [1978] FCA 16, considered R v Forster[2002] QCA 495, considered R v Goodger[2009] QCA 377, cited R v Graham [2015] QCA 137, considered R v Neumann; Ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, cited R v Reeves[2001] QCA 91, cited
COUNSEL:	The applicant appeared on his own behalf D C Boyle for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent