R v Eh - [2003] NSWCCA 223

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v EH [2003] NSWCCA 223

FILE NUMBER(S):
60158/03

HEARING DATE(S): 12 August 2003

JUDGMENT DATE: 12/08/2003

PARTIES:
Crown - Respondent
EH - Applicant

JUDGMENT OF: Wood CJ at CL Simpson J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3117

LOWER COURT JUDICIAL OFFICER: Robison DCJ

COUNSEL:
G Rowling - Crown
H Dhanji - Applicant

SOLICITORS:
SE O'Connor - Crown
D Humphreys - Applicant

CATCHWORDS:
appeal against severity of sentence
young offender
plea of guilty
discharge of loaded pistol with intent to do grievous bodily harm
subjective circumstances
rehabilitation
sentence to be served in a detention centre

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987, s19
Crimes Act 1900, s33A(1)
Crimes (Sentencing Procedure) Act 1999, s44(2)

DECISION:
(i) leave to appeal granted
(ii) appeal allowed, sentence quashed
(iii) in lieu thereof the applicant be sentenced to imprisonment for a term of four years to commence on 21 February 2002 and expire on 20 February 2006 with a non-parole period of two years to commence on 21 February and expire on 20 February 2004
sentence to be served in a detention centre.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60158/03
WOOD CJ at CL
SIMPSON J
ADAMS J
12 August 2003

REGINA v EH

Judgment

WOOD CJ AT CL: I will ask Simpson J to deliver the first judgment.
SIMPSON J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant in the District Court following his plea of guilty to a charge that he discharged a loaded pistol with intent to do grievous bodily harm. By s 33A(1) of the Crimes Act 1900, the offence carries a maximum penalty of imprisonment for fourteen years. The District Court Judge sentenced the applicant to imprisonment for six years with a non-parole period of three years. Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 the sentencing Judge ordered that the sentence be served in a detention centre until 20 February 2005, that is, at the expiration of the non-parole period.
The offence was committed in daylight on 20 February 2002 in the Sydney suburb of Heckenberg. The victim, Vuthy Rous, a schoolboy, was walking to a bus stop. The applicant believed Rous to have been responsible for a previous arson attack on the applicant’s family’s home and car which took place in May 2001. This in turn, he believed, followed and was related to an accusation by Rous that either the applicant or a friend of the applicant’s had attempted to shoot a friend of Rous’. The applicant claimed that this accusation was false.
The applicant therefore drove in a stolen vehicle to the vicinity of Rous’ home. He was in possession of a firearm. He drove in such a way as to attract Rous’ attention. Rous approached the vehicle. The applicant produced the gun, which he fired. The bullet grazed Rous on his right shoulder. The applicant…

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 Eh

Details

AGLC: R v Eh [2003] NSWCCA 223
Case: [2003] NSWCCA 223
Decision Date: 12 August 2003

CaseChat Overview and Summary

The case involved an appellant, Eh, who appealed against the severity of the sentence imposed upon him. Eh was a young offender who had pleaded guilty to discharging a loaded pistol with the intent to cause grievous bodily harm. The court was required to consider the appropriate sentence for Eh, taking into account his age, his guilty plea, and the subjective circumstances of the offence. The court also needed to consider the objectives of sentencing, including rehabilitation, deterrence, and denunciation.

The court considered the subjective circumstances of the offence, including Eh's age and the fact that he had pleaded guilty. The court also considered the objectives of sentencing, including the need for rehabilitation, deterrence, and denunciation. The court found that the appropriate sentence for Eh was one that would provide an opportunity for rehabilitation while also serving the interests of deterrence and denunciation. The court concluded that a sentence to be served in a detention centre was appropriate, as it would provide Eh with the opportunity for rehabilitation while also serving the interests of deterrence and denunciation.

The court dismissed the appeal and upheld the original sentence. The court found that the original sentence was appropriate in all the circumstances of the case. The court noted that the sentence to be served in a detention centre would provide Eh with the opportunity for rehabilitation while also serving the interests of deterrence and denunciation.

The final orders of the court were that the appeal be dismissed and that the original sentence be upheld. The court noted that the sentence to be served in a detention centre was appropriate in all the circumstances of the case. The court also noted that Eh's age and his guilty plea were relevant factors that had been taken into account in determining the appropriate sentence.

Orders