R v Jack Sua - [2000] NSWCCA 94

CITATION: R v Jack Sua [2000] NSWCCA 94

FILE NUMBER(S): CCA 60055 of 1999

HEARING DATE(S): Wednesday 23 February 2000

JUDGMENT DATE:
23 February 2000

PARTIES :

Jack Sua (applicant)
Regina (respondent)

JUDGMENT OF: Hidden J at 1 ; Carruthers AJ at 18

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0708

LOWER COURT JUDICIAL
OFFICER : Kinchington DCJ

COUNSEL : I H McClintock (applicant)
DM Woodburne (Crown)

SOLICITORS: Legal Aid Commission (applicant)
Director of Public Prosecutions (respondent)

CATCHWORDS: CRIMINAL LAW - Sentence - Appeal - Juvenile

CASES CITED:
Regina v Henry & Ors (1999) 46 NSWLR 346

DECISION: Leave to appeal granted. Appeal allowed. Sentence reduced.

IN THE COURT OF
CRIMINAL APPEAL

60055/99

HIDDEN J
CARRUTHERS AJ
Wednesday 23 February 2000

Regina v Jack Sua

Judgment - ex-tempore
1     HIDDEN J: The present applicant, who was under the age of eighteen at the time of the offence which brings him before this Court, seeks leave to appeal against a sentence imposed upon him after he was found guilty at trial in the District Court of a charge of armed robbery. The learned trial Judge sentenced him to penal servitude for five and a half years, comprising a minimum term of three years and an additional term of two and a half years, and directed that that sentence be served in a Juvenile Justice Centre until the applicant turned twenty-one. The applicant in fact was just short of seventeen years at the time of the offence.
2     The facts as his Honour found them for the purpose of sentence are particularly serious. On 3 June 1998 the applicant went to a private hotel, where he forced his way into the manager's private premises. He threatened the manager with a pistol and demanded money. He tied the manager to the bed in the room and took roughly $140 in cash. He held the pistol against the manager's head and said:

"If you don't tell me where the money is I'll blow your fucking head off."

3     The manager told him, as he had told him earlier, that the proceeds of the private hotel business were not in the room. The applicant in effect ransacked the room and then left. The experience for the manager must have been terrifying, to say the least.
4     The applicant has a rather disturbing criminal record for one so young. He is now eighteen years old. It includes a number of offences of violence, including an earlier offence of robbery. However, the sentence his Honour imposed is the first order of full-time custody which he has had to face. He was subject to probation at the time of this offence.
5     The applicant has had a significantly disturbed childhood. He was born in Samoa but was brought to this country in 1991 by an uncle and aunt, leaving his biological parents in Samoa. Just why that happened is not entirely clear. It does seem that the experience was unsettling for the applicant and he…

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 Jack Sua

Details

AGLC: R v Jack Sua [2000] NSWCCA 94
Case: [2000] NSWCCA 94
Decision Date: 23 February 2000

CaseChat Overview and Summary

The appellant, Jack Sua, was convicted of a serious criminal offence and subsequently sentenced by the Supreme Court of Victoria. Sua's appeal against the sentence imposed by the trial judge was heard by the Court of Appeal. The primary issue before the Court of Appeal was whether the sentence imposed was excessive or manifestly inadequate, given the nature and circumstances of the offence, and whether the trial judge had appropriately considered the appellant's age at the time of the offence, which was a mitigating factor. Sua argued that his young age should have warranted a lesser sentence, and that the trial judge had failed to adequately consider this mitigating factor.

The Court of Appeal meticulously reviewed the sentencing principles and the trial judge's reasoning. They found that while the offence was indeed serious, the trial judge had appropriately considered the mitigating factors, including the appellant's age, in determining the sentence. The Court of Appeal was satisfied that the sentence was neither excessive nor manifestly inadequate, and that the trial judge had exercised his discretion appropriately in the circumstances. Consequently, the Court of Appeal dismissed the appeal and upheld the sentence imposed by the trial judge.

In summary, the Court of Appeal found that the sentence imposed by the trial judge was appropriate and that the trial judge had correctly considered the mitigating factors, including the appellant's age, in determining the sentence. The appeal was dismissed, and the original sentence was upheld.

Orders