R v Chong - [2008] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 42 of 2007

THE QUEEN
	v
KEITH HONKEONG CHONG

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JUDGES:	NEAVE and KELLAM JJA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 June 2008
DATE OF JUDGMENT:	26 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 119

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CRIMINAL LAW – Appeal against sentence – Four counts of intentionally causing serious injury – Sentences totalling 12½ years imprisonment with non-parole period of 8 years – Whether judge erred in determining the appellant did not suffer from a serious psychiatric illness, sentencing the appellant as a serious offender, and that the sentences were manifestly excessive – Whether inadequate weight given to guilty plea, admissions, remorse, youth, exemplary prior character, rehabilitation, moral culpability and psychiatric history – Judge did not err when considering the appellant’s conduct, seriousness of each count, in sentencing as a serious offender and when considering general and specific deterrence – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Andrew George Solicitors

NEAVE JA:

For the reasons given by Osborn AJA I agree that the appellant’s appeal against sentence should be dismissed. Because the appellant is a youthful offender, this court would normally place considerable emphasis on his rehabilitation. However the brutality of the attacks, all of which involved the use of weapons, and the serious harm caused to the victims, requires the imposition of a sentence which denounces the appellant’s conduct and places considerable emphasis on the principles of specific and general deterrence. In my opinion, his Honour’s sentencing reasons took account of all relevant sentencing considerations. Further, the orders for cumulation which his Honour made in relation to counts 2 and 3 were lenient, having regard to the circumstances of the attacks, the shocking injuries inflicted on Abucar and Kyobe and the fact that the appellant had to be sentenced as a serious violent offender.

KELLAM JA:

I have read the draft judgment of Osborn AJA and agree with him that this appeal should be dismissed.

I wish to add this only in relation to the ground of manifest excess. As pointed out by Osborn AJA, the appellant engaged in four vicious assaults of persons over a period between August 2005 and March 2006. All of the attacks were carried out with a weapon and were callous and brutal in the extreme. Regrettably violence of this type, often committed upon innocent victims in the streets of Melbourne in the early hours of the morning, is now not uncommon. The nature and seriousness of the offences were such that the principles of general and specific deterrence and the need for the Court to express denunciation of the crimes assumed considerable significance for sentencing purposes. The judge was correct in saying that those principles were ‘imperative’ in the circumstances before him.

As pointed out by counsel for the appellant and as clearly accepted by the sentencing judge, the…

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 Chong

Details

AGLC: R v Chong [2008] VSCA 119
Case: [2008] VSCA 119
Decision Date: 26 June 2008

CaseChat Overview and Summary

The appellant, Chong, appealed against his sentence for four counts of intentionally causing serious injury, which resulted in a total of 12½ years imprisonment with a non-parole period of 8 years. The appeal was heard in the court of appeal. Chong argued that the judge had erred in various aspects of the sentencing process, including by not recognising that he suffered from a serious psychiatric illness, by sentencing him as a serious offender, and by concluding that the sentences were manifestly excessive. He also claimed that inadequate weight had been given to his guilty plea, admissions, remorse, youth, exemplary prior character, rehabilitation, moral culpability and psychiatric history.

The court examined whether the trial judge had erred in considering Chong's conduct, the seriousness of each count, in sentencing him as a serious offender, and when considering general and specific deterrence. Chong's argument that the judge had not properly considered his psychiatric history was rejected. The court found that the trial judge had given adequate consideration to the factors Chong argued were inadequately weighted. The court also concluded that the sentences were not manifestly excessive and that the judge had appropriately considered the principles of general and specific deterrence.

The court of appeal found that the trial judge had not erred in any respect and dismissed the appeal. The reasoning and outcome of the case demonstrate the importance of a thorough consideration of all relevant factors in sentencing, including psychiatric history, conduct, seriousness of the offence, and deterrence. The court's decision also highlights the limited scope for appeal against sentencing decisions.

Orders