R v Fong (No. 2) - [2020] NSWDC 275

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, 203
Cases 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 465
Category: Principal judgment
Parties: Director of Public Prosecutions
Mr M Fong
Representation: 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.
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.
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.
On 15 May 2020, the appellant’s appeal against conviction was dismissed. He now pursues his severity appeal.

CIRCUMSTANCES OF…

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 Fong (No. 2)

Details

AGLC: R v Fong (No. 2) [2020] NSWDC 275
Case: [2020] NSWDC 275
Decision Date: 04 June 2020

CaseChat Overview and Summary

The appellant, Fong, was convicted of negligent driving occasioning grievous bodily harm in the County Court of Victoria. The case was appealed to the Court of Appeal, Supreme Court of Victoria, concerning the severity of the sentence imposed on the appellant. Fong, who had no prior criminal record, was driving without a licence and ran a red light, colliding with a motorcycle and causing serious injuries to the rider. The Crown sought a more severe sentence, arguing that the original sentence was too lenient. The appellant, on the other hand, argued that the sentence should not be increased due to his remorse and the fact that it was his first offence.

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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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, 203
Cases 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 465
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr M Fong
Representation:	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