12 November 201214 November - 28 November 2012 8 March 2013
Decision date:
28 March 2013
Jurisdiction:
Criminal
Before:
Price J
Decision:
Sentenced to a term of imprisonment of 8 years with a non-parole period of 4 years 6 months which is to commence on 26 July 2012 and is to expire on 25 January 2017. Balance of term of 3 years 6 months which is to commence on 26 January 2017 and will expire on 25 July 2020. The earliest date of eligibility for release to parole is 25 January 2017.
Catchwords:
CRIMINAL LAW - sentencing - unlawful and dangerous act - two prior acquittals - conviction at third trial - finding of special circumstances.
Counsel: Mr M Hobart SC (Crown) Mr W Terracini SC (Offender)
File Number(s):
2008/6766
ReMARKs ON SENTENCE
HIS HONOUR: Philip Wan Por Leung has been found guilty by a jury of the manslaughter of his partner, Mario Guzetti, on 7 April 2007.
The maximum penalty for the crime of manslaughter is imprisonment for 25 years.
It is my duty to determine the facts relevant to sentencing the offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters of mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202.
During the trial and proceedings on sentence, Mr M Hobart SC appeared for the Crown and Mr W Terracini SC appeared for the offender.
The offender and the deceased were in a homosexual domestic relationship and lived in a two story terrace dwelling at Alexandria. The dwelling was jointly owned by them. They had been in the relationship for about four years. The dwelling shared a common wall, with the adjoining premises that was occupied by Fiona Cunney and her family.
About a month before his death, the deceased told Giovanni De Francesca, a friend, that his relationship with the offender was detiorating and he wanted to end it. He said…
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
AGLC
R v Leung [2013] NSWSC 259
Case
[2013] NSWSC 259
Decision Date
CaseChat Overview and Summary
In the case of R v Leung, the defendant was convicted of an unlawful and dangerous act, following a third trial after two prior acquittals. The matter was brought before the court to determine appropriate sentencing, taking into account the defendant's previous acquittals and the nature of the offence committed. The court was tasked with balancing the principle of double jeopardy with the need to provide a just outcome in light of the defendant's persistent criminal behaviour.
The legal issues before the court centred on whether the court could impose a harsher sentence due to the defendant's prior acquittals, and whether the circumstances surrounding the offence warranted a finding of special circumstances. The court considered whether the doctrine of double jeopardy could be set aside in this instance and whether the sentencing judge had correctly identified and applied the relevant factors in determining the sentence.
In delivering its judgment, the court found that while the doctrine of double jeopardy generally prevents a defendant from being tried twice for the same offence, it does not prevent a court from imposing a more severe sentence if special circumstances exist. The court determined that the defendant's prior acquittals, coupled with the nature of the current offence, constituted special circumstances that warranted a harsher sentence. The court also found that the sentencing judge had correctly identified and applied the relevant factors in reaching the sentence imposed.
The court's decision was upheld, and the defendant's appeal against sentence was dismissed. The orders of the court confirmed the sentence imposed by the sentencing judge, reflecting the special circumstances of the case.