R v Do - [2005] NSWCCA 183

CITATION:
R v DO [2005] NSWCCA 183
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 April 2005

JUDGMENT DATE:

12 May 2005

JUDGMENT OF:
Hunt AJA at 1; Hulme J at 2; Johnson J at 30

DECISION:
See paragraph 29.

PARTIES:
Regina
Ly Do

FILE NUMBER(S):
CCA 2004/3227

COUNSEL:
Crown: P Ingram
Respondent: P Boulten SC

SOLICITORS:
Crown: S Kavanagh
Respondent: SE O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/1130

LOWER COURT JUDICIAL OFFICER:
Tupman DCJ

- 9 -

2004/3227

HUNT AJA
HULME J
JOHNSON J

Thursday 12 May 2005

R v Ly DO

Judgment

1 HUNT AJA: I agree with Hulme J.

2 HULME J: This is an appeal by the Crown against sentences imposed on 4 November 2004 by Judge Tupman on the abovenamed Respondent in respect of 2 charges, viz.:-

(i). That on 17 April 2004, in company, he maliciously inflicted grievous bodily harm upon Kevin Black.

3 The first of these offences exists by reason of Section 35(2) of the Crimes Act and rendered the Respondent liable to imprisonment for 10 years. The second offence arose under Section 7(1) of the Firearms Act 1996 and carries a maximum penalty of 14 years imprisonment.

4 In respect of the first offence, Judge Tupman sentenced the Respondent to imprisonment for 2½ years including a non-parole period of 18 months, both periods commencing on 17 April 2004, the date when he was arrested. Her Honour directed that, at the expiration of the non-parole period, the Respondent be released on parole subject to conditions. In respect of the second offence her Honour sentenced the Respondent to a fixed term of imprisonment of 12 months commencing on 17 April 2004.

5 The Crown has appealed upon the ground that the “sentence” imposed is manifestly inadequate although the Notice of Appeal refers to both sentences. In submissions made to the Court the Crown contended that the overall sentence imposed inadequately reflected the objective seriousness of the offences, individually and cumulatively. The Crown also contended that her Honour’s remarks on sentence exhibited patent error “in holding that authority precluded her from finding otherwise than that the Respondent had acted recklessly”.

6 In support of the first aspect of these submissions the Crown drew attention to the terms of s21A of the Crimes (Sentencing Procedure) Act and to a number of particular matters:-

· The use of a weapon – cf s21A(b)

· The harm inflicted was substantial – cf s21A(g)

· The disregard of public safety – cf s21A(2)(i)

· The victim, a security officer was vulnerable by reason of his occupation – cf s21A(2)(l)

7 Referring to R v Doorey [2000] NSWCCA 456 at [24] the Crown also relied on…

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 Do

Details

AGLC: R v Do [2005] NSWCCA 183
Case: [2005] NSWCCA 183
Decision Date: 12 May 2005

CaseChat Overview and Summary

This case involves an appeal by the Crown against the sentences imposed on Ly Do by Judge Tupman in the District Court. Do was convicted of two charges: maliciously inflicting grievous bodily harm upon Kevin Black, and using a firearm without a license. The Crown argued that the sentences imposed were manifestly inadequate, given the objective seriousness of the offences. The Court of Criminal Appeal considered the arguments and the sentencing remarks of Judge Tupman.

The legal issues before the Court were whether the sentences imposed were manifestly inadequate, and whether Judge Tupman erred in her assessment of the Respondent's state of mind at the time of the offence. The Crown contended that the sentences failed to adequately reflect the seriousness of the offences, and that the Judge had erred in finding that Do acted recklessly rather than with intent to cause grievous bodily harm.

The Court of Criminal Appeal found that the sentences imposed were indeed manifestly inadequate, and that the Judge's assessment of Do's state of mind did not constitute error. The Court held that pointing a loaded firearm at another person, particularly in a state of intoxication, was inherently dangerous and serious. Although intoxication played a significant role in Do's offending, his actions still demonstrated a reckless disregard for the safety and rights of others. The Court concluded that the original sentences did not adequately address the need for general deterrence and retribution.

As a result of the appeal, the Court quashed the original sentence for the charge of maliciously inflicting grievous bodily harm and imposed a new sentence of imprisonment with a non-parole period of 2 years and 6 months, and a balance of term of 18 months. The concurrent sentence for the firearms offence was confirmed. The Court also noted that Do would be eligible for parole release on 17 October 2006.

Orders