R v Jung; R v Tonazzi - [2021] NSWDC 289

District Court

New South Wales

Medium Neutral Citation: R v Jung; R v Tonazzi [2021] NSWDC 289
Hearing dates: 11, 18 June 2021 (Sentence Hearing)
Date of orders: 02 July 2021
Decision date: 02 July 2021
Jurisdiction: Criminal
Before: R. J. Weber SC DCJ
Decision:
At [85] and [86].

Catchwords:
CRIME — Violent offences — Recklessly cause grievous bodily harm in company
SENTENCING — Co-offenders — Joint sentence proceedings
SENTENCING — Relevant factors on sentence — Objective seriousness – Where the victim’s injuries are serious and permanent
SENTENCING — Mitigating factors — Good character — No record of previous convictions — Not part of a planned or organised criminal activity — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend
SENTENCING — Mitigating factors — Provocation – Where a perceived racial slight made hours earlier provides context for offending behaviour
SENTENCING — Relevant factors on sentence — Moral culpability – Where mental health issues are causative to offending behaviour
SENTENCING — Penalties — Intensive correction orders – Whether head sentence would preclude consideration of an intensive correction order – Whether a sentence of imprisonment is appropriate to be served in the community – Where the interests of justice are best served by the offenders’ serving a term of imprisonment within the community

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Biddle v R [2017] NSWCCA 128 at [68]
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
Lawson v R [2018] NSWCCA 215 at [35]
Markarian v The Queen (2005) 228 CLR 357 at [51]
MDZ v R [2011] NSWCCA 243 at [67]
Pullen v R [2018] NSWCCA 264, 275 A Crim R 509 at [89]
R v Douglas [2007] NSWCCA 31 at [12]
Tepania v R [2018] NSWCCA 247, 275 A Crim R 233, at 258 [112]
Waterfall v R [2019] NSWCCA 281 at [33], [38]
Yun v R [2017] NSWCCA 317 at [47]

Texts Cited:
New South Wales, Bills – Second Reading, Legislative Assembly, 11 October 2017, 472, (Mark Speakman SC, Attorney-General)

Category: Sentence
Parties: Regina
Jae Guen Jung (Offender)
Adam Tonazzi (Offender)
Representation:
Counsel:
Mr A. Terracini (Crown Prosecutor)
S.J. Odgers SC, with
Mr Nematalla (Counsel for the Offender Jung)
P. Boulten SC, with
Mr McMahon (Counsel for the Offender Tonazzi)
Solicitors:
The Office of the Director of Public Prosecutions
Crawford and Duncan Lawyers (Offender Jung)
CDM Lawyers (Offender Tonazzi)

File Number(s): 2020/00099892 (R v Jae Geun Jung)
2020/00099872 (R v Adam Tonazzi)
Publication restriction: None.

Judgment

The offenders come before the Court for sentence, having each pleaded guilty to one count of recklessly causing grievous bodily harm in company. This is conduct contrary to the provisions of section 35(1) of the Crimes Act 1900 (Crimes Act). This offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of five years.
In each case the offenders have pleaded guilty to the count at an early time, and it…

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.

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Details

Case: [2021] NSWDC 289
Decision Date: 02 July 2021

CaseChat Overview and Summary

In the case of R v Jung; R v Tonazzi, the appellants were convicted of recklessly causing grievous bodily harm to a victim in company. The appeal was heard by the court, which was required to consider several legal issues related to sentencing, including the objective seriousness of the offence, the mitigating factors for the offenders, and the appropriateness of an intensive correction order. The court had to balance the severity of the crime with the offenders' personal circumstances and circumstances that may have contributed to their offending behaviour.

The legal issues before the court involved determining the appropriate sentence for the appellants, taking into account the nature and circumstances of the offence, the appellants' personal circumstances, and the principles of sentencing. The court considered the objective seriousness of the offence, the appellants' good character and lack of prior convictions, their remorse, and the likelihood of rehabilitation. The court also had to weigh the mitigating factors of provocation and the appellants' mental health issues against the gravity of the crime. Furthermore, the court had to decide whether an intensive correction order was appropriate in light of the head sentence and whether the interests of justice would be best served by the offenders serving a term of imprisonment within the community.

The court found that the appellants' actions were of significant objective seriousness, as the victim suffered serious and permanent injuries. However, the court also acknowledged the mitigating factors, including the appellants' good character, lack of prior convictions, and remorse. The court recognised the provocation stemming from a perceived racial slight and the appellants' mental health issues as contributing factors to the offence. Ultimately, the court determined that an intensive correction order would not be appropriate as the head sentence, but that the interests of justice would be best served by the appellants serving a term of imprisonment within the community.

The court ordered that the appellants be sentenced to imprisonment within the community, taking into account the factors discussed above. The court held that the appellants' offending behaviour was of significant seriousness, but that the mitigating factors and the appellants' personal circumstances warranted a sentence that allowed for rehabilitation and reintegration into society. The court also emphasised the importance of proportionality in sentencing and the need to consider the broader interests of justice in determining the appropriate sentence for the appellants.

Orders

Orders of the court

At [85] and [86].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Jung; R v Tonazzi [2021] NSWDC 289
Hearing dates:	11, 18 June 2021 (Sentence Hearing)
Date of orders:	02 July 2021
Decision date:	02 July 2021
Jurisdiction:	Criminal
Before:	R. J. Weber SC DCJ
Decision:	At [85] and [86].
Catchwords:	CRIME — Violent offences — Recklessly cause grievous bodily harm in company SENTENCING — Co-offenders — Joint sentence proceedings SENTENCING — Relevant factors on sentence — Objective seriousness – Where the victim’s injuries are serious and permanent SENTENCING — Mitigating factors — Good character — No record of previous convictions — Not part of a planned or organised criminal activity — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Mitigating factors — Provocation – Where a perceived racial slight made hours earlier provides context for offending behaviour SENTENCING — Relevant factors on sentence — Moral culpability – Where mental health issues are causative to offending behaviour SENTENCING — Penalties — Intensive correction orders – Whether head sentence would preclude consideration of an intensive correction order – Whether a sentence of imprisonment is appropriate to be served in the community – Where the interests of justice are best served by the offenders’ serving a term of imprisonment within the community
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Biddle v R [2017] NSWCCA 128 at [68] Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Lawson v R [2018] NSWCCA 215 at [35] Markarian v The Queen (2005) 228 CLR 357 at [51] MDZ v R [2011] NSWCCA 243 at [67] Pullen v R [2018] NSWCCA 264, 275 A Crim R 509 at [89] R v Douglas [2007] NSWCCA 31 at [12] Tepania v R [2018] NSWCCA 247, 275 A Crim R 233, at 258 [112] Waterfall v R [2019] NSWCCA 281 at [33], [38] Yun v R [2017] NSWCCA 317 at [47]
Texts Cited:	New South Wales, Bills – Second Reading, Legislative Assembly, 11 October 2017, 472, (Mark Speakman SC, Attorney-General)
Category:	Sentence
Parties:	Regina Jae Guen Jung (Offender) Adam Tonazzi (Offender)
Representation:	Counsel: Mr A. Terracini (Crown Prosecutor) S.J. Odgers SC, with Mr Nematalla (Counsel for the Offender Jung) P. Boulten SC, with Mr McMahon (Counsel for the Offender Tonazzi) Solicitors: The Office of the Director of Public Prosecutions Crawford and Duncan Lawyers (Offender Jung) CDM Lawyers (Offender Tonazzi)
File Number(s):	2020/00099892 (R v Jae Geun Jung) 2020/00099872 (R v Adam Tonazzi)
Publication restriction:	None.