R v Quach - [2002] NSWCCA 173

CITATION: Regina v Quach [2002] NSWCCA 173

FILE NUMBER(S): CCA 60567/01

HEARING DATE(S): 13/05/02

JUDGMENT DATE:
15 May 2002

PARTIES :

Regina
Trung Quach

JUDGMENT OF: O'Keefe J at 1; Smart AJ at 49

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0926

LOWER COURT JUDICIAL
OFFICER : Woods ADCJ

COUNSEL : Mr D G Dalton - Applicant
Mr G I O Rowling - Respondent

SOLICITORS: Rodney Van Houten - Applicant
S E O'Connor - DPP - Respondent

CATCHWORDS: Criminal law - Appeal - Leave to appeal against sentence - Causing grievous bodily harm with intent to murder - Offence objectively serious - Circumstances serious - Error in sentencing - Character disregarded as mitigating factor - Sentence imposed not excessive - Sentence imposed appropriate

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900

CASES CITED:
Ryan v The Queen [2001] HCA 21
Regina v Kanj [2000] NSWCCA 408
Regina v Green [2001] NSWCCA 258
Regina v Glen [1994] NSWCCA unreported 19 December 1994
Regina v Kotevski (1998) NSWCCA unreported 3 April 1998
Regina v Oinonen [1999] NSWCCA 310

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

- 13 -IN THE COURT OF

60567/01

O’Keefe J
Smart AJ
15 May 2002

Regina v TRUNG QUACH

Judgment

O’KEEFE J :

1 This is an application by Trung Quach (the Applicant) pursuant to s.5(1)(c) of the Criminal Appeal Act 1912 (the Act) for leave to appeal against a sentence imposed in the District Court on 1 August 2001 following the conviction of the applicant by a jury on a count of having caused grievous bodily harm to his wife with intent to murder her on 25 July 2000.

2 The offence for which the Applicant was convicted carries a maximum penalty of twenty five years imprisonment (s.27 Crimes 1900). His Honour imposed a term of imprisonment of nine years to commence on 22 May 2001 and to expire on 21 May 2010. A non-parole period of five years was fixed to begin on the same date as the sentence and to expire on 21 May 2006. Special circumstances were found by his Honour.

3 At the hearing of this application, counsel for the Applicant relied upon four bases, namely that the sentencing Judge :

(i) had not taken account of the previous good character of the Applicant when fixing the sentence;

(ii) had not dealt with or had regard to the contrition of the Applicant;

(iii) had not dealt with or taken into account a depressive illness from which the Applicant was said to be suffering at the time of committing the offence in question;

4 The Applicant had no prior convictions and until the attack on his wife, as his Honour said, he appeared to be:

“a normal law-abiding member of the community with a good job and family … hard working … anxious to provide adequately for his family … who after arriving as…

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 Quach

Details

AGLC: R v Quach [2002] NSWCCA 173
Case: [2002] NSWCCA 173
Decision Date: 15 May 2002

CaseChat Overview and Summary

In the matter of R v Quach, the appellant sought leave to appeal against his sentence imposed following a conviction for causing grievous bodily harm with intent to murder. The case was heard by the court of appeal in Australia, which was required to consider the application for leave to appeal. The legal issues before the court were whether the error in sentencing, which involved disregarding the appellant's character as a mitigating factor, resulted in a sentence that was excessive or inappropriate.

The court considered the objective seriousness of the offence and the circumstances in which it was committed. The court noted that the offence was objectively serious due to the intent to murder and the grievous bodily harm caused. The circumstances of the offence also contributed to the gravity of the situation. The court further evaluated the impact of the error in sentencing, specifically the disregard of the appellant's character as a mitigating factor. Despite this error, the court found that the sentence imposed was not excessive and was, in fact, appropriate given the circumstances. The court emphasised that the appellant's character, while a relevant factor, did not outweigh the severity of the crime committed.

The court denied the appellant leave to appeal against his sentence. The reasoning behind this decision was that the sentence imposed was deemed appropriate, taking into account the objective seriousness of the offence and the circumstances in which it was committed. The court concluded that the error in sentencing did not result in a sentence that was excessive or inappropriate. Therefore, the appeal was dismissed, and the original sentence remained in place.

Orders