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R v Giang

R v Giang

Case [2001] NSWCCA 276 18 July 2001

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CITATION: REGINA v GIANG [2001] NSWCCA 276

FILE NUMBER(S): CCA 60230/01

HEARING DATE(S): 4 July 2001

JUDGMENT DATE:
18 July 2001

PARTIES :

The Crown
David Cuong Giang (Appl)

JUDGMENT OF: Studdert J at 1; McClellan J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/3015

LOWER COURT JUDICIAL
OFFICER : Sides DCJ

COUNSEL : D Woodburne (Crown)
P R Linegar (Appl)

SOLICITORS: S E O'Connor (Crown)
P Nguyen (Appl)

CATCHWORDS: Criminal law - appeal against severity of sentence - s 319 Crimes Act - act with intent to pervert the course of justice - applicant pleaded guilty to charge that he entered into an agreement and made preparations to give false evidence on behalf of a defendant in Local Court proceedings - objective - criminality of the applicant - case where subjective matters significant - serious nature of offence

LEGISLATION CITED: Crimes Act s 319
Justices Act s 51A

CASES CITED:
R v Purtell [2001] NSWCCA 21
R v Chapman, Court of Criminal Appeal, 21 May 1998, unreported
R v Bulliman, Court of Criminal Appeal, 25 February 1993
R v Aristodemou, Court of Criminal Appeal, 30 June 1994, unreported
R v Chad, Court of Criminal Appeal, 13 May 1997, unreported
R v Healy, Court of Appeal of Victoria, 4 August 1997, unreported
R v Stone, Supreme Court of Victoria, 4 March 1998, unreported
R v Paul Ronald Delio, Supreme Court of Victoria, 23 March 1998
Christian v R, Supreme Court of West Australia, Court of Criminal Appeal, 17 May 1996
R v Wiltshire [1999] WASCA 113
Slander v The Queen (1999) 195 CLR 655
Dinsdale v The Queen (2000) 175 ALR 315

DECISION: See para 45

IN THE COURT OF

CRIMINAL APPEAL

No 60230/01

STUDDERT J

McCLELLAN J

WEDNESDAY, 18 JULY 2001

REGINA v David Cuong GIANG

JUDGMENT

1 STUDDERT J: I agree with McClellan J.

2 McCLELLAN J: The applicant, David Cuong Giang, seeks leave to appeal against a sentence imposed upon him by Sides DCJ. The applicant pleaded guilty to doing an act intending to pervert the course of justice contrary to s 319 of the Crimes Act. The offence carries a maximum penalty of fourteen years imprisonment.

3 The offence occurred following an incident which took place at the Mekong Club in Cabramatta on 6 March 1999. A person known as Mark Gabriel, who was working as a security guard at the Club, became involved in an altercation with another security guard. Mr Gabriel struck the other security guard with an extendable baton and was subsequently charged with malicious wounding. That charge was listed for hearing at the Burwood Local Court on 16 July 1999.

4 On that day the case was not completed and it was stood over for further hearing on 7 October 1999. During the period between the hearing dates the police received information that Mr Gabriel had recruited witnesses to give false evidence for him. In fact the applicant had agreed with Mr Gabriel that he would give…

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 Giang

Details

AGLC: R v Giang [2001] NSWCCA 276
Case: [2001] NSWCCA 276
Decision Date: 18 July 2001

CaseChat Overview and Summary

The case before the court involved the applicant, Giang, who appealed against the severity of his sentence, following his conviction for entering into an agreement and making preparations to provide false evidence on behalf of a defendant in Local Court proceedings. The applicant pleaded guilty to the charge that he intended to pervert the course of justice. The legal issue before the court was whether the sentence imposed was manifestly excessive, in light of the seriousness of the offence and the applicant's criminal history.

The court considered the nature of the offence, the applicant's criminal history, and the impact of his actions on the administration of justice. The court noted that the objective of the offence under section 319 of the Crimes Act was to deter individuals from attempting to pervert the course of justice, and that the seriousness of the offence warranted a significant penalty. The court also considered the subjective matters relevant to the applicant, such as his age, background, and the potential for rehabilitation. However, the court found that these factors did not outweigh the gravity of the offence and the need to deter similar conduct in the future.

In determining whether the sentence was manifestly excessive, the court compared the sentence imposed with those imposed in similar cases. The court found that the sentence was within the range of sentences typically imposed for such offences and that it was not manifestly excessive. The court also noted that the applicant had a significant criminal history, which was a relevant factor in determining the appropriate sentence. The court ultimately concluded that the sentence imposed was appropriate and not manifestly excessive. The appeal against the severity of the sentence was therefore dismissed.

Orders