R v David Qin

[2008] NSWDC 41

Reported Decision: 7 DCLR (NSW) 108

District Court

CITATION:	R v David Qin [2008] NSWDC 41
HEARING DATE(S):	10 -19 December 2007 - Trial, 7 March 2008
JUDGMENT DATE:	27 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	On Count 1 the offender is discharged on condition he enter a s9 bond to be of good behaviour for a period of 5 years. On Count 2 the offender is sentenced to 10 months imprisonment, but suspended for its term upon entering a s12 bond to be of good behaviour.
CATCHWORDS:	Crminal law - Sentence - particular offences - indecent assault - sexual intercourse without consent - seriousness - Sentencing - effect of discharge under s10 Crimes (Sentencing Procedure) Act whether 'conviction' - effect of possibility of deportation - effect of limited capacity for English
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW)
CASES CITED:	R v Markuleski [2001] NSWCCA 290 R v Slack [2004] NSWCCA 128 R v Arvind (unreported) NSWCCA 8 March 1996 R v Azzi [2004] NSWCCA 398 R v Price [2005] NSWCCA 285 R v Frigiani [2007] NSWCCA 81 R v Shresthra (1991) 173 CLR 48 R v Mirzaee [2004] NSWCCA 315 R v Pastovsky (unreported) NSWCCA 28 June 1995 R v May [1999] NSWCCA 40 R v Dinsdale [2000] 202 CLR 321
PARTIES:	The Crown David Qin
FILE NUMBER(S):	07/11/0576
COUNSEL:	P. Aitken, solicitor advocate - Crown B. Murray - Offender
SOLICITORS:	NSW DPP Hurlestone Park Legal

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SENTENCE

1 HIS HONOUR: David Qin was convicted after a jury found him guilty of two charges. The first was a charge of indecent assault, and the second, a charge of sexual intercourse without consent. The jury acquitted him of a further charge of indecent assault, which allegedly had been committed at the same time. The evidence of the complainant was the only evidence in support of all three charges.

2 The jury was given a direction in accordance with the decision of the Court of Criminal Appeal in Markuleski, but nevertheless rejected the complainant’s evidence in respect of the third charge. It is difficult to see how they could have done this while accepting the evidence in respect of the first two charges, as the complainant’s credit was the main issue in respect of all three charges. It may also be significant that the trial began in the last week of the court term before the Christmas vacation.

3 At the beginning of the trial, the Crown Prosecutor told the jury panel that he estimated that the trial would finish within the week. For a number of reasons, some of which were not attributable to either party, the trial ran three days longer than the estimated time given at the empanelling. Some jurors were clearly inconvenienced by the delay. I excused one juror for one afternoon so that she would be able to attend a function at her child’s school, and no evidence was taken during that period. However, other jurors…