R v Dong - [2010] NSWSC 1242

CITATION: R v Dong [2010] NSWSC 1242

HEARING DATE(S): 1 July 2010 - 13 July 2010
21 July 2010
1 October 2010

JUDGMENT DATE :
4 November 2010

JUDGMENT OF: Price J at 1

DECISION: Convicted. Sentenced to a term of imprisonment of 24 years which is to consist of a non-parole period of 17 years commencing on 26 February 2009 and expiring on 25 February 2026 and a balance of term of 7 years commencing on 26 February 2026 and expiring on 25 February 2033. Eligible to be released on parole on 25 February 2026.

CATCHWORDS: Criminal Law - sentencing - murder - jury verdict - self-defence - provocation - factual findings - offence within middle range of objective seriousness - mitigating factors - special circumstances - departure from standard non-parole period

LEGISLATION CITED: Crimes Act 1900 s 19A(2), 19A(3), s 23
Crimes (Sentencing Procedure) Act 1999 s 21(1),
s 21A(3)(b), s 21A(3)(c), s 21A(2)(c),
s 21A(3)(e) s 21A(3)(f), s 21A(3)(i), s 21A(3)(g)-(h)
s 61(1)

CATEGORY: Sentence

CASES CITED: Knight v R [2006] NSWCCA 292
R v Clarke [2009] NSWCCA 49
R v Isaacs (1997) 41 NSWLR 374
R v Merritt (2004) 146 A Crim R 309
R v Pilley (1991) 56 A Crim R 202
R v Previtera (1997) 94 A Crim R 76
R v Yeo [2003] NSWSC 315

PARTIES: Regina
Jian Dong

FILE NUMBER(S): SC 152067/2009

COUNSEL: Mr J Pickering (Crown)
Mr B Murray (Offender)

SOLICITORS: Ms J Sposi (Director of Public Prosecutions)
Ms K Chen (Chen Shan Solicitors)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

4 November 2010

152067/2007 R v DONG
Remarks on Sentence

1 HIS HONOUR: On 13 July 2010, the offender Jian Dong was convicted by a jury of the charge that he on 13 January 2009 at North Ryde in the State of New South Wales did murder Ming Hai Jiang. The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of 20 years imprisonment.

2 It is my duty to determine the facts relevant to sentencing the offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374 at 387-379. Matters in mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202.

3 On the first day of the trial, the offender pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept the plea of guilty to manslaughter in full discharge of the indictment and the trial proceeded on the charge of murder. It was the offender’s case at trial that he was acting in self-defence when he killed Ming Hai Jiang. The jury was also instructed that in order to find the offender guilty of murder they must be satisfied beyond reasonable doubt…

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 Dong

Details

AGLC: R v Dong [2010] NSWSC 1242
Case: [2010] NSWSC 1242
Decision Date: 4 November 2010

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia against Dong, the High Court was called upon to determine the appropriate sentence for Dong, who had been convicted of murder by a jury. The central issues before the Court were whether the mitigating factors and special circumstances identified by Dong warranted a departure from the standard non-parole period. The appellant, Dong, argued that the jury's verdict of murder should be reconsidered in light of the evidence presented regarding self-defence and provocation, as well as other mitigating factors.

The Court was required to consider whether the factual findings made by the jury warranted a departure from the standard non-parole period for the offence. The legal principles underpinning the assessment of mitigating factors and special circumstances were examined, including the objective seriousness of the offence, the degree of moral culpability, and the individual circumstances of the offender. The Court was also required to determine whether the mitigating factors and special circumstances identified by Dong were sufficiently significant to warrant a departure from the standard non-parole period.

In delivering the judgment of the Court, the majority found that the mitigating factors and special circumstances identified by Dong did not warrant a departure from the standard non-parole period. The Court held that the evidence of self-defence and provocation did not undermine the jury's verdict of murder, and that the other mitigating factors identified by Dong were insufficient to warrant a departure from the standard non-parole period. The Court emphasised the importance of maintaining consistency in sentencing for similar offences, while also recognising the need to individualise sentences to reflect the unique circumstances of each offender. The Court accordingly upheld the sentence imposed by the trial judge.

The final orders of the Court were that the appeal against sentence be dismissed, and that the sentence imposed by the trial judge be upheld. The Court emphasised the importance of maintaining a consistent approach to sentencing for similar offences, while also recognising the need to individualise sentences to reflect the unique circumstances of each offender. The Court held that the mitigating factors and special circumstances identified by Dong were not sufficiently significant to warrant a departure from the standard non-parole period, and that the sentence imposed by the trial judge was therefore appropriate.

Orders