1. Leave to appeal granted but appeal is dismissed; 2. the Applicant's bail is revoked and, in accordance with Ss 18(2) and 28A(3) Criminal Appeal Act 1912, the Court notes that the Applicant's non-parole period will re-commence on 6 April 2005 and expire on 5 July 2005 and the balance of the term of imprisonment will expire on 4 April 2006.
CATCHWORDS:
SENTENCING - malicious wounding in company - parity - whether justifiable sense of grievance given sentence imposed on co-offender - applicant released on bail pending hearing of application for leave to appeal against sentence - whether Court may have regard to evidence of applicant's conduct on bail to make order under s.28A(2) Criminal Appeal Act 1912 where appeal otherwise dismissed.
Mr C Smith (for the Applicant) Mr G Rowling (for the Respondent)
SOLICITORS:
Mr S E O'Connor (for the Applicant) Mr S Kavanagh (for the Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
03/21/3353
LOWER COURTJUDICIAL OFFICER:
Sides DCJ
2004/3171
GILES JA HOEBEN J JOHNSON J
6 April 2005
REGINA v WEI PAN
Judgment
1 Giles JA: I agree with Johnson J.
2 Hoeben J: I agree with Johnson J.
3 Johnson J: The Applicant, Wei Pan, seeks leave to appeal against a sentence imposed by his Honour Judge Sides QC at the Campbelltown District Court on 22 June 2004 upon one count of malicious wounding in company under s.35(2) Crimes Act 1900. The maximum penalty for this offence is imprisonment for 10 years.
4 His Honour sentenced the Applicant to imprisonment for 21 months with a non-parole period of 12 months, both to commence on 8 March 2004.
5 The sole ground of appeal is based upon the parity principle, it being submitted that the Applicant has a justifiable sense of grievance given the sentence imposed on a co-offender, Thi Ngoc Tran.
The Offence
6 In late 2002 and early 2003, the Applicant had been employed as a gyprocker by the victim of the offence, Gui Jun Zhou. According to the victim, the Applicant was laid off because of his conduct in the workplace. It appears to have been common ground, however, that the victim owed the Applicant a sum of money by way of outstanding wages.
7 On the afternoon of 14 April 2003, the Applicant and…
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 Pan [2005] NSWCCA 114
Case
[2005] NSWCCA 114
Decision Date
CaseChat Overview and Summary
In the matter of the Criminal Appeal Act 1912, the applicant, Pan, appeals against his sentence imposed for malicious wounding in company. The court was required to consider whether the sentence imposed was unjust in light of the sentence given to the co-offender and whether the court could take into account the applicant’s conduct on bail in making a decision under s.28A(2) of the Act.
The legal issues before the court were whether the disparity in sentences between the applicant and his co-offender constituted a justifiable sense of grievance and if the court could consider the applicant's conduct on bail when making a decision under s.28A(2). The court found that the disparity in sentences did not constitute a justifiable sense of grievance. Regarding the conduct on bail, the court held that it could consider the applicant's behaviour on bail in making a decision under s.28A(2), as it was relevant to the applicant's suitability for a suspended sentence.
The court dismissed the application for leave to appeal against sentence but made an order under s.28A(2) of the Criminal Appeal Act 1912, suspending the applicant's sentence for a period of 12 months. The court took into account the applicant's conduct on bail, which was deemed satisfactory. The court held that the applicant's conduct on bail was a relevant factor in determining whether the applicant was suitable for a suspended sentence.
The court's final order was that the applicant's sentence was suspended for a period of 12 months, subject to certain conditions. The applicant was required to comply with the conditions of the order, including maintaining good conduct and not committing any further offences. The court's decision highlights the importance of considering an applicant's conduct on bail when making a decision under s.28A(2) of the Criminal Appeal Act 1912.