R v Lee

Case [2021] QCA 233


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…

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Details
AGLC
R v Lee [2021] QCA 233
Case
[2021] QCA 233
Decision Date

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

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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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