R v Dang - [1999] NSWCCA 42

CITATION: Regina v Dang [1999] NSWCCA 42

FILE NUMBER(S): CCA 60650/98

HEARING DATE(S): 02/03/99

JUDGMENT DATE:
2 March 1999

PARTIES :

Regina v Yu Bin DANG

JUDGMENT OF: Abadee J at 1; Barr J at 20; Adams J at 21

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70021/96

LOWER COURT JUDICIAL OFFICER: Acting Justice Black

COUNSEL: W G Dawe QC - Crown
T.. Buddin SC - Respondent

SOLICITORS: S. E. O'Connor - DPP
T. A. Murphy - Respondent

CATCHWORDS:

ACTS CITED: s 5D Criminal Appeal Act 1912 (NSW)
Sentencing Act 1989 (NSW)

CASES CITED:
R v Alexander 78 A Crim R 141
R v Khan (1996) 86 A Crim R 552
R v Bollen (1998) 99 A Crim R 510
R v Previtera (1997) 94 A Crim R 76

DECISION: Crown appeal is dismissed. Leave to the respondent is granted to appeal against sentence, but the appeal is dismissed.

IN THE COURT

OF CRIMINAL APPEAL

60650/98

ABADEE J
BARR J
ADAMS

TUESDAY 2 March 1999

REGINA v Yu Bin DANG

JUDGMENT
1 ABADEE J: This is an appeal by the Director of Public Prosecutions under section 5D of the Criminal Appeal Act 1912 (NSW) against sentences imposed on the respondent by Acting Justice Black in the Supreme Court, Sydney, on 28 August 1998. In the event there is now only one appeal. That is an appeal founded upon an assertion that the sentence imposed by his Honour for the offence of manslaughter was manifestly inadequate. The Crown has abandoned its appeal in respect of the further sentence that was imposed by his Honour for the offence of malicious wounding.
2 The Crown concedes that the factual matrix for the appeal against the manslaughter conviction is to be found in the reasons for sentencing. The Crown further accepts or does not dispute that the sentences that were imposed for manslaughter and malicious wounding should not be other than concurrent. The respondent has in turn by leave filed a cross-appeal asserting that the sentence for manslaughter was excessive.
3 On 6 July 1998 the respondent was found guilty of the manslaughter of one Hiu and the malicious wounding of her daughter, both matters allegedly having occurred on 22 November 1995. The respondent had been tried on an indictment for the murder of Hiu and further with intent to murder the daughter Vania. As I have said, the jury returned a verdict of malicious wounding and his Honour sentenced the respondent for that offence. That sentence is not any longer the subject of any appeal.
4 The verdict of manslaughter was found by the learned sentencing judge to be based upon the jury having found provocation. In sentencing his Honour found that there were no special circumstances within the meaning of the Sentencing Act 1989 (NSW) and for the crime of manslaughter imposed a total sentence of six years penal servitude comprised of a minimum term of 4.5 years commencing on 6 July 1998 and expiring on 5 January 2003…

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 Dang

Details

AGLC: R v Dang [1999] NSWCCA 42
Case: [1999] NSWCCA 42
Decision Date: 2 March 1999

CaseChat Overview and Summary

In Regina v Dang, the Court of Criminal Appeal was asked to consider the adequacy of a sentence imposed for manslaughter by Acting Justice Black in the Supreme Court. The Director of Public Prosecutions had appealed the sentence under section 5D of the Criminal Appeal Act 1912 (NSW), claiming it was manifestly inadequate, while the respondent cross-appealed, asserting that the sentence was excessive. The respondent had been found guilty of manslaughter and malicious wounding, with the Crown abandoning its appeal concerning the sentence for the latter offence. The court noted the delay in notifying the respondent of the Crown's intention to appeal, which was not explained and was not commendable.

The legal issues before the court were whether the sentence for manslaughter was manifestly inadequate and whether any error in the sentencing process warranted a reconsideration of the sentence. The Crown argued that the sentence was inadequate by referencing previous cases, while the respondent countered with other cases to argue that the sentence was not excessive. Additionally, the court considered whether the sentencing judge had erred by taking into account the victim's impact statement, which is impermissible in cases involving death.

The court concluded that the Crown had not demonstrated that the sentence for manslaughter was manifestly inadequate. The court observed that while the sentencing judge's findings were sparse, they implicitly aligned with the principles set out in R v Alexander. Furthermore, the court determined that the error in considering the victim's impact statement did not necessitate a different sentence as the imposed sentence was already lenient and within the appropriate range. The court dismissed both the Crown's appeal and the respondent's cross-appeal, with leave granted for the respondent to appeal against the sentence. The formal orders of the court were that the Crown appeal was dismissed, and while leave to the respondent was granted to appeal against the sentence, the appeal itself was also dismissed.

Orders