R v Peifeng Yu - [2016] NSWDC 257

District Court

New South Wales

Medium Neutral Citation: R v Peifeng Yu [2016] NSWDC 257
Date of orders: 18 January 2016
Decision date: 18 January 2016
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
See orders [44]-[50]

Catchwords: CRIMINAL LAW – sentence – guilty pleas – intentionally choking with recklessness, assault oabh, intimidate with intention to cause fear of physical harm – ss 37, 59 Crimes Act 1900 – s 13 Crimes (Domestic and Personal Violence) Act 2007 – breach ADVO related offence – domestic violence – general deterrence to address high level of domestic violence – limited insight, remorse and contrition – breach offence was 63 calls to victim from prison – comments about need for Corrective Services to supervise and prevent these calls – criticism that lawyers sent letter from offender written in gaol directly to the victim, not through DPP
Legislation Cited: Crimes Act 1900 ss 37(1), 59
Crimes (Domestic and Personal Violence) Act 2007 s 13(1)
Criminal Procedure Act 1986 s 166
Category: Sentence
Parties: Regina (Crown)
Mr Peifeng Yu (Offender)
Representation: Counsel:
Mr Tembe (Crown)
Mr Chan (Offender)

File Number(s): 2015/00023568 and 2015/00171344
Publication restriction: Nil

Judgment

HER HONOUR: The offender is before me for sentence following his pleas of guilty in the Local Court to offences of domestic violence, all occurring in Auburn on 25 January 2015, specifically they are the following:

1. Sequence 4. A charge of intimidating Nifei He with the intention of causing her to fear physical or mental harm. That is an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 which carries a maximum penalty of 5 years imprisonment.

2. Sequence 5. A charge of assaulting Ms He and causing her actual bodily harm.

3. Sequence 7. A further charge of assaulting Ms He and causing her actual bodily harm.

Each of these two offences is contrary to s 59 of the Crimes Act 1900 and carries a maximum penalty of 5 years imprisonment.
All of these first three offences are capable of being dealt with in the Local Court.

4. Sequence 6. A charge of intentionally choking Ms He with recklessness. That is an offence contrary to s 37(1) of the Crimes Act 1900 which carries a maximum penalty of 10 years imprisonment.

The offender asks when sentencing him for this offence I take into account a further charge of assault occasioning actual bodily harm which occurred on the same day.
After sentencing him, or as will be clear at the same time of sentencing him for these matters, I am also required to sentence him for a related offence referred to this Court pursuant to s 166 of the Criminal Procedure Act 1986. That is an offence of contravening a restriction in an apprehended domestic violence order between 1 February and 25 April 2015 at Silverwater.
The maximum penalty for that offence is 2 years imprisonment.
There are agreed facts before the Court. The relevant facts are that the offender and Ms He had…

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 Peifeng Yu

Details

AGLC: R v Peifeng Yu [2016] NSWDC 257
Case: [2016] NSWDC 257
Decision Date: 18 January 2016

CaseChat Overview and Summary

The case of R v Peifeng Yu involved the appellant, Peifeng Yu, who had entered guilty pleas to charges of intentionally choking his partner with recklessness, assault occasioning actual bodily harm, and intimidating with intent to cause fear of physical harm. The case was heard by the court, which was required to determine the appropriate sentence for the appellant’s crimes. The court needed to consider the principles of sentencing, particularly the need for general deterrence in light of the high incidence of domestic violence, as well as the appellant’s limited insight, remorse, and contrition. Additionally, the court had to address the issue of the appellant's breach of an Apprehended Domestic Violence Order (ADVO) as a related offence, under sections 37 and 59 of the Crimes Act 1900, and section 13 of the Crimes (Domestic and Personal Violence) Act 2007.

The court's reasoning focused on the severity and nature of the crimes committed by the appellant, which were driven by a pattern of abusive behaviour towards his partner. The court emphasised the importance of deterrence in cases of domestic violence to protect the community and to signal the unacceptability of such conduct. Despite the appellant's limited insight and remorse, the court considered the need to hold the offender accountable and to ensure that the sentence would effectively deter future occurrences of domestic violence. The court also highlighted the appellant's breach of the ADVO as a significant factor in the sentencing process, noting the 63 calls made from prison to the victim and the need for corrective services to intervene and prevent such communications. The court further expressed concern over the method by which the appellant communicated with the victim, through letters sent directly by his lawyers rather than via the Director of Public Prosecutions, as required by law.

In light of these considerations, the court determined that the appropriate sentence should reflect the gravity of the offences and the need for deterrence. The court imposed a custodial sentence, taking into account the appellant’s limited insight and remorse, but primarily focusing on the imperative to protect the community from domestic violence. The orders included a custodial sentence, conditions for the appellant’s release, and directives for corrective services to manage communication with the victim. The court also emphasised the importance of adhering to legal protocols to prevent further breaches of the ADVO.

Orders

Orders of the court

See orders [44]-[50]

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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Medium Neutral Citation:	R v Peifeng Yu [2016] NSWDC 257
Date of orders:	18 January 2016
Decision date:	18 January 2016
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	See orders [44]-[50]
Catchwords:	CRIMINAL LAW – sentence – guilty pleas – intentionally choking with recklessness, assault oabh, intimidate with intention to cause fear of physical harm – ss 37, 59 Crimes Act 1900 – s 13 Crimes (Domestic and Personal Violence) Act 2007 – breach ADVO related offence – domestic violence – general deterrence to address high level of domestic violence – limited insight, remorse and contrition – breach offence was 63 calls to victim from prison – comments about need for Corrective Services to supervise and prevent these calls – criticism that lawyers sent letter from offender written in gaol directly to the victim, not through DPP
Legislation Cited:	Crimes Act 1900 ss 37(1), 59 Crimes (Domestic and Personal Violence) Act 2007 s 13(1) Criminal Procedure Act 1986 s 166
Category:	Sentence
Parties:	Regina (Crown) Mr Peifeng Yu (Offender)
Representation:	Counsel: Mr Tembe (Crown) Mr Chan (Offender)
File Number(s):	2015/00023568 and 2015/00171344
Publication restriction:	Nil