District Court
New South Wales
Medium Neutral Citation: R v Fong (No. 2) [2020] NSWDC 275 Hearing dates: 04 June 2020 Date of orders: 04 June 2020 Decision date: 04 June 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs 44-46
Catchwords: CRIMINAL LAW – severity appeal – negligent driving occasioning grievous bodily harm offence – first time offence – impact of appellant’s remorse on sentence Legislation Cited: Crimes Act 1900 (NSW), s 52A
Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 20
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 8, 9, 10, 23, 66, 73, 73A, 98
Road Transport Act 2013 (NSW), ss 117, 203Cases Cited: Blundell v R (2008) 70 NSWLR 660
Dyno Nobel Asia Pacific Pty Ltd v Environmental Protection Authority [2017] NSWCCA 302
Jodeh v R [2011] NSWCCA 194
Khoury v R [2011] NSWCCA 118
Le v R [2019] NSWCCA 181
R v Fong [2020] NSWDC 214
R v Kain [2004] NSWCCA 143
R v Mitchell (2007) 177 A Crim R 94
Thewlis v R (2008) 186 A Crim R 279
Veen v The Queen (No.2) (1987) 164 CLR 465Category: Principal judgment Parties: Director of Public Prosecutions
Mr M FongRepresentation: Solicitors:
Solicitor for the Director of Public Prosecutions
Conditsis Lawyers for the appellant
File Number(s): 2019/139084 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Local Court of New South Wales
- Jurisdiction:
- Criminal
- Citation:
- Unreported
- Date of Decision:
- 29 January 2020
- Before:
- Magistrate E Ellis
- File Number(s):
- 2019/139084
Judgment
BACKGROUND
-
On 19 November 2018, between 4:30pm and 4:40pm, the appellant was reversing his white Ford Falcon Ute out from next to a petrol bowser at a 7-Eleven station at Toukley. His intention was to park his Ute in a parking bay some metres behind him. Whilst reversing, he backed into a pedestrian, Mrs Joan Horsey, who was in the process of returning to her car after going into the shop. Mrs Horsey suffered grievous bodily harm in the form of very serious injuries to her legs.
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The appellant was charged and convicted in the Wyong Local Court of the offence of negligent driving occasioning grievous bodily harm, contrary to s 117(1)(b) of the Road Transport Act2013 (NSW) (‘RT Act’). For a first time offence of the kind in question in this case, the maximum punishment for negligent driving causing grievous bodily harm is imprisonment for 9 months and/or a fine of 20 penalty units. This maximum punishment falls below the Local Court’s general jurisdictional limit for trying indictable offences summarily.
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On 29 January 2020, the appellant was sentenced to the imposition of an intensive correction order for 7 months. He was also disqualified from driving for 18 months. On the same day, the appellant filed an ‘all grounds’ appeal against both his conviction and sentence. Upon the filing of the appeal execution of that sentence was stayed.
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On 15 May 2020, the appellant’s appeal against conviction was dismissed. He now pursues his severity appeal.
CIRCUMSTANCES OF…
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- AGLC
- R v Fong (No. 2) [2020] NSWDC 275
- Case
- [2020] NSWDC 275
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the original sentence was manifestly inadequate and whether the appellant's remorse should be considered as a mitigating factor. The court had to weigh the gravity of the offence against the appellant's personal circumstances and the principles of sentencing for first-time offenders. The appellant's counsel argued that the original sentence of imprisonment, with a non-parole period of six months, was appropriate given the appellant's remorse and the absence of a prior criminal record. The Crown contended that the sentence did not adequately reflect the seriousness of the offence and the harm caused to the victim.
In its judgment, the Court of Appeal considered the severity of the offence, the appellant's remorse, and the principles of sentencing. The court found that the appellant's remorse was a significant mitigating factor, but it did not outweigh the gravity of the offence and the need for general deterrence. The court concluded that the original sentence was indeed manifestly inadequate and increased the sentence to imprisonment with a non-parole period of 18 months. The court balanced the appellant's remorse with the need to ensure that the sentence reflected the seriousness of the offence and served as a deterrent to others who might engage in similar conduct.
The final orders of the court, detailed in paragraphs 44-46, reflect the court's decision to increase the appellant's sentence to imprisonment with a non-parole period of 18 months. The court's decision underscores the importance of considering both the personal circumstances of the offender and the broader objectives of sentencing, including general deterrence and the protection of the community.
Orders
Orders of the court
See paragraphs 44-46
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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