R v Lee

Case [2021] QCA 233 28 October 2021

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Lee [2021] QCA 233

PARTIES:

R
v
LEE, David Jae Hwa
(applicant)

FILE NO/S:

CA No 292 of 2020
DC No 1402 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 11 December 2020 (Loury QC DCJ)

DELIVERED ON:

28 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2021

JUDGES:

Sofronoff P and Davis and Williams JJ

ORDERS:

1.   Leave to appeal be granted.

2.   Appeal allowed.

3.   The applicant be sentenced as per Schedule 1 attached to these reasons.

4.   Declare counts 29, 33 and 54 serious violent offences.

5.   Set the parole eligibility date after serving eight years of the sentence.

6.   Declare the time the applicant was held in pre-sentence custody from 2 February 2018 to 4 July 2018 and from 23 May 2019 to 10 December 2020, a period of 721 days as time served under the sentence.

7.   Declare that each of the offences on the indictments, except count 59 possessing a dangerous drug, is a domestic violence offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to a head sentence of 13 years imprisonment – where the sentencing judge set a parole eligibility date after serving eight years of the sentence – where the applicant appeals the sentence on the ground that the sentence imposed was manifestly excessive – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant appeals the sentence on the ground that the sentencing judge failed to give sufficient weight to the personal circumstances of the applicant – where the sentencing judge concluded that the applicant had a personality disorder – where the applicant submits that the sentencing judge gave insufficient weight to the applicant’s mental condition, his abusive and traumatic childhood and the physical and sexual abuse he had suffered – whether the sentencing judge failed to give sufficient weight to the applicant’s personal circumstances

Penalties and Sentences Act 1992 (Qld), s 160D, s 160F, s 161B

Nguyen v The Queen (2016) 256 CLR 656; (2016) 90 ALJR 595; [2016] HCA 17, considered
Power v The Queen (1974) 131 CLR 623; (1974) 48 ALJR 297; [1974] HCA 26, considered
R v Derks[2011] QCA 295, considered
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
R v RBD[2020] QCA 136, considered
R v Utley[2017] QCA 94, cited

COUNSEL:

The applicant appeared on his own behalf
D Nardone for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions…

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 Lee

Details

AGLC: R v Lee [2021] QCA 233
Case: [2021] QCA 233
Decision Date: 28 October 2021

CaseChat Overview and Summary

The case of R v Lee involved an appeal against the sentence imposed on the applicant by the sentencing judge. The applicant was sentenced to a head sentence of 13 years imprisonment for a series of offences. The applicant appealed on the basis that the sentence imposed was manifestly excessive and that the sentencing judge failed to give sufficient weight to the applicant’s personal circumstances, including his mental condition and the abuse he had suffered in his childhood. The court was required to determine whether the sentence was manifestly excessive and whether the sentencing judge adequately considered the applicant’s personal circumstances.

The court examined the principles governing appeals against sentence, particularly focusing on whether the sentence was manifestly excessive or inadequate. The court also assessed whether the sentencing judge appropriately weighed the applicant's personal circumstances, including the mental condition and the history of abuse. In doing so, the court considered the nature and circumstances of the offences, the principles of sentencing, and the specific personal circumstances presented by the applicant.

The court found that the sentence imposed was indeed manifestly excessive. The court determined that the sentencing judge did not adequately consider the applicant’s mental condition and the significant adverse personal circumstances, which included a traumatic and abusive childhood. Consequently, the court allowed the appeal, reducing the sentence and setting a new parole eligibility date. The court also made several declarations regarding the classification of certain offences and the counting of pre-sentence custody time towards the sentence.

The final orders included granting leave to appeal, allowing the appeal, reducing the applicant’s sentence, setting a new parole eligibility date, and making several declarations regarding the nature of the offences and the counting of pre-sentence custody time.

Orders

Orders of the court

1. Leave to appeal be granted.

2. Appeal allowed.

3. The applicant be sentenced as per Schedule 1 attached to these reasons.

4. Declare counts 29, 33 and 54 serious violent offences.

5. Set the parole eligibility date after serving eight years of the sentence.

6. Declare the time the applicant was held in pre-sentence custody from 2 February 2018 to 4 July 2018 and from 23 May 2019 to 10 December 2020, a period of 721 days as time served under the sentence.

7. Declare that each of the offences on the indictments, except count 59 possessing a dangerous drug, is a domestic violence offence.

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.

Citations

AGLC Citation

R v Lee [2021] QCA 233

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Nguyen v The Queen
[2020] HCA 23

…’s personal circumstances Penalties and Sentences Act 1992 (Qld), s 160D, s 160F, s 161B Nguyen v The Queen (2016) 256 CLR 656; (2016) 90 ALJR 595; [2016] HCA 17, considered Power v The Queen (1974) 131 CLR 623; (1974) 48 ALJR 297; [1974] HCA 26, considered R v Derks [2011] QCA 295, considered R v McDougall and Colla…
R v RBD
[2020] QCA 136

…[2007] 2 Qd R 87; [2006] QCA 365, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v RBD [2020] QCA 136, considered R v Utley [2017] QCA 94, cited COUNSEL: The applicant appeared on his own behalf D Nardone for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Publ…
R v Kirke
[2020] QCA 53 Para 33

…onsequence that if it is declared then the offender must serve 80 per cent of the sentence before becoming eligible for parole.[29] [29]See R v Kirke [2020] QCA 53 at [33] per Bond J.…
R v Smith
[2019] QCA 33 Para 17

…ence is also a factor that is to be considered in setting the appropriate sentence.[32] [32] R v McDougall and Collas at [17]. See also R v Smith [2019] QCA 33. [125]It is necessary to consider and set a parole eligibility date as part of the sentence. Under the Penalties and Sentences Act 1992 (Qld) one parole…
R v Utley
[2017] QCA 94

…nsidered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v RBD [2020] QCA 136, considered R v Utley [2017] QCA 94, cited COUNSEL: The applicant appeared on his own behalf D Nardone for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the…
Nguyen v The Queen
[2016] HCA 17

…Sentences Act 1992 (Qld), s 160D, s 160F, s 161B Nguyen v The Queen (2016) 256 CLR 656; (2016) 90 ALJR 595; [2016] HCA 17, considered Power v The Queen (1974) 131 CLR 623; (1974) 48 ALJR 297; [1974] HCA 26, considered R v Derks [2011] QCA 295, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365,…
R v CBO
[2016] QCA 24

…f authorities where statutory parole consequences for some offending and not all offending arises. See for example R v Nagy [2004] 1 Qd R 63; R v CBO [2016] QCA 24; R v Derks [2011] QCA 295. [88]There was no error in the sentencing judge making the three year sentence on count 20 cumulative with the 10 year head…
Kentwell v The Queen
[2014] HCA 37

…e and independent exercise of its discretion it concludes that no different sentence should be passed.’[18]” [17](1936) 55 CLR 499, 505. [18] Kentwell v The Queen (2014) 252 CLR 601 at [35].…
R v Yarwood
[2011] QCA 367

…caused any abnormality of mind, that it impaired your mental functioning or judgment. I was referred by your counsel to the decision of R v Yarwood [2011] QCA 367 which relates to the proper approach to be taken to a mental disorder or abnormality. As I say, you do not have a mental illness causally linked to the…
R v Derks
[2011] QCA 295

…7, considered Power v The Queen (1974) 131 CLR 623; (1974) 48 ALJR 297; [1974] HCA 26, considered R v Derks [2011] QCA 295, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v RBD [2020] QCA 136, considered R v Utley [2017] QCA…
R v McDougall and Collas
[2006] QCA 365

…; [1974] HCA 26, considered R v Derks [2011] QCA 295, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v RBD [2020] QCA 136, considered R v Utley [2017] QCA 94, cited COUNSEL: The applicant appeared on his own behalf D Nardone…
Markarian v The Queen
[2005] HCA 25

…ch that the overall sentence was just and appropriate to the totality of the appellant’s offending behaviour.[24]” [20](2016) 90 ALJR 595. [21] Markarian v The Queen (2005) 228 CLR 357 at [27]; 79 ALJR 1048 per Gleeson CJ, Gummow, Hayne and Callinan JJ. [22] Johnson v The Queen (2004) 78 ALJR 616 at [26] per Gummow, Callinan a…
Johnson v The Queen
[2004] HCA 15

…[20](2016) 90 ALJR 595. [21] Markarian v The Queen (2005) 228 CLR 357 at [27]; 79 ALJR 1048 per Gleeson CJ, Gummow, Hayne and Callinan JJ. [22] Johnson v The Queen (2004) 78 ALJR 616 at [26] per Gummow, Callinan and Heydon JJ. [23]Sentencing Act, s 55(2). [24] Mill v The Queen (1988) 166 CLR 59 at 62-63; 63 ALJR 117 per Wils…
R v Nagy
[2003] QCA 175

…considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v RBD [2020] QCA 136, considered R v Utley [2017] QCA 94, cited COUNSEL: The applicant appeared on his own behalf D Nardone for the respondent SOLICITORS: The applicant appeared…
Mill v The Queen
[1988] HCA 70

…JJ. [22] Johnson v The Queen (2004) 78 ALJR 616 at [26] per Gummow, Callinan and Heydon JJ. [23]Sentencing Act, s 55(2). [24] Mill v The Queen (1988) 166 CLR 59 at 62-63; 63 ALJR 117 per Wilson, Deane, Dawson, Toohey and Gaudron JJ.…
Power v The Queen
[1974] HCA 26

…56; (2016) 90 ALJR 595; [2016] HCA 17, considered Power v The Queen (1974) 131 CLR 623; (1974) 48 ALJR 297; [1974] HCA 26, considered R v Derks [2011] QCA 295, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v RBD [2020] QCA…
House v R
[1936] HCA 40

…fresh, ‘unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.’[18]” [17](1936) 55 CLR 499, 505. [18] Kentwell v The Queen (2014) 252 CLR 601 at [35].…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
160D 2 mentions

CITATION:	R v Lee [2021] QCA 233
PARTIES:	R v LEE, David Jae Hwa (applicant)
FILE NO/S:	CA No 292 of 2020 DC No 1402 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 11 December 2020 (Loury QC DCJ)
DELIVERED ON:	28 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2021
JUDGES:	Sofronoff P and Davis and Williams JJ
ORDERS:	1. Leave to appeal be granted. 2. Appeal allowed. 3. The applicant be sentenced as per Schedule 1 attached to these reasons. 4. Declare counts 29, 33 and 54 serious violent offences. 5. Set the parole eligibility date after serving eight years of the sentence. 6. Declare the time the applicant was held in pre-sentence custody from 2 February 2018 to 4 July 2018 and from 23 May 2019 to 10 December 2020, a period of 721 days as time served under the sentence. 7. Declare that each of the offences on the indictments, except count 59 possessing a dangerous drug, is a domestic violence offence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to a head sentence of 13 years imprisonment – where the sentencing judge set a parole eligibility date after serving eight years of the sentence – where the applicant appeals the sentence on the ground that the sentence imposed was manifestly excessive – whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant appeals the sentence on the ground that the sentencing judge failed to give sufficient weight to the personal circumstances of the applicant – where the sentencing judge concluded that the applicant had a personality disorder – where the applicant submits that the sentencing judge gave insufficient weight to the applicant’s mental condition, his abusive and traumatic childhood and the physical and sexual abuse he had suffered – whether the sentencing judge failed to give sufficient weight to the applicant’s personal circumstances Penalties and Sentences Act 1992 (Qld), s 160D, s 160F, s 161B Nguyen v The Queen (2016) 256 CLR 656; (2016) 90 ALJR 595; [2016] HCA 17, considered Power v The Queen (1974) 131 CLR 623; (1974) 48 ALJR 297; [1974] HCA 26, considered R v Derks[2011] QCA 295, considered R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v RBD[2020] QCA 136, considered R v Utley[2017] QCA 94, cited
COUNSEL:	The applicant appeared on his own behalf D Nardone for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions…