R v Soong - [2019] QSC 133

SUPREME COURT OF QUEENSLAND

CITATION:

R v Soong [2019] QSC 133

PARTIES:

R

(respondent)

v
ANTHONY YOON SUN SOONG
(applicant)

FILE NO:

SC No 1046 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application for a pre-sentence ruling

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2019; supplementary submissions on behalf of the prisoner dated 20 March 2019; supplementary submissions on behalf of the Crown dated 20 March 2019

JUDGE:

Burns J

ORDER:

It is ruled that s 538 of the Criminal Code 1899 (Qld) has no application to the circumstances in which the offence of attempted murder was committed by the prisoner.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – where the applicant prisoner was convicted of attempted murder – whether the prisoner desisted of his own motion from the further prosecution of his intention to kill the victim – whether the fulfilment of the prisoner’s intention was prevented by circumstances independent of his will – whether the maximum penalty for the offence of attempted murder was, in the proven circumstances, reduced by reason of s 538 of the Criminal Code 1899 (Qld).

Criminal Code 1899 (Qld), s 4, s 306, s 536, s 538
Evidence Act1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 15

Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Cheung v The Queen (2001) 209 CLR 1, followed
R v Gill; ex parte Attorney-General (Qld) (2004) 146 A Crim R 12, cited
R v Morrison [1999] 1 Qd R 397, cited
R v Parker [2011] QCA 198, cited
R v Witchard [2005] 1 Qd R 428, followed

COUNSEL:

A Kimmins for the applicant

P McCarthy for the respondent

SOLICITORS:

Gatenby Criminal Law for the applicant

Office of Director of Public Prosecutions for the respondent

The trial of the applicant prisoner before a jury commenced on 29 January 2019. He faced an indictment alleging one count of burglary (count 1), one count of attempted murder (count 2) or, in the alternative, doing grievous bodily harm with intent to do so (count 3) and one count of unlawful assault whilst armed with a gun (count 4). Each offence was alleged to have been committed on 6 December 2015.
In the presence of the panel, the prisoner pleaded guilty to counts 1 and 4 and not guilty to counts 2 and 3 but, in the case of count 3, he also pleaded guilty to doing grievous bodily harm simpliciter. The Crown did not accept that plea in discharge of counts 2 or 3 and so the trial proceeded on those counts.[1]
[1]On 14 February 2019, the prisoner also pleaded guilty to one charge of contravening a domestic violence order.
On 5 February 2019, the prisoner was found guilty by the jury of attempted murder. Following administration of the allocutus, the sentencing hearing was adjourned to allow for material in mitigation of penalty to be…

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 Soong

Details

AGLC: R v Soong [2019] QSC 133
Case: [2019] QSC 133
Decision Date: 28 May 2019

CaseChat Overview and Summary

The matter of R v Soong involved the applicant, a prisoner convicted of attempted murder, seeking a reconsideration of his sentence. The crux of the case was the application of section 538 of the Criminal Code 1899 (Qld), which reduces the maximum penalty for attempted murder if the fulfilment of the intention to kill was prevented by circumstances independent of the offender's will. The applicant argued that his desistance from further prosecuting his intention to kill the victim, and the prevention of his intention by circumstances beyond his control, warranted a sentence reduction under this provision. The court was tasked with determining the applicability of section 538 in the context of the applicant's case.

The central legal issue before the court was whether the applicant's desistance from his intention to kill the victim, and the prevention of that intention by circumstances independent of his will, fell within the scope of section 538. This required an examination of the precise wording of the statute, as well as its purpose and the broader principles of sentencing for attempted crimes. The court needed to discern if the applicant's actions constituted a cessation of the attempt due to factors outside his control, and if such cessation justified a reduction in the maximum penalty for the offence of attempted murder.

The court found that the applicant's desistance from further prosecuting his intention to kill the victim, and the prevention of that intention by circumstances independent of his will, did not align with the requirements of section 538. The court concluded that the provision was not applicable to the circumstances of the offence as it did not pertain to cases where the offender voluntarily ceased their attempt. Therefore, the maximum penalty for the offence of attempted murder remained unaffected by section 538 in this instance. The court's ruling effectively denied the applicant's application for a sentence reduction under the contested statutory provision.

Orders

Orders of the court

It is ruled that s 538 of the Criminal Code 1899 (Qld) has no application to the circumstances in which the offence of attempted murder was committed by the prisoner.

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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CITATION:	R v Soong [2019] QSC 133
PARTIES:	R (respondent) v ANTHONY YOON SUN SOONG (applicant)
FILE NO:	SC No 1046 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application for a pre-sentence ruling
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2019; supplementary submissions on behalf of the prisoner dated 20 March 2019; supplementary submissions on behalf of the Crown dated 20 March 2019
JUDGE:	Burns J
ORDER:	It is ruled that s 538 of the *Criminal Code* 1899 (Qld) has no application to the circumstances in which the offence of attempted murder was committed by the prisoner.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – where the applicant prisoner was convicted of attempted murder – whether the prisoner desisted of his own motion from the further prosecution of his intention to kill the victim – whether the fulfilment of the prisoner’s intention was prevented by circumstances independent of his will – whether the maximum penalty for the offence of attempted murder was, in the proven circumstances, reduced by reason of s 538 of the Criminal Code 1899 (Qld). Criminal Code 1899 (Qld), s 4, s 306, s 536, s 538 Evidence Act1977 (Qld), s 132C Penalties and Sentences Act 1992 (Qld), s 15 Briginshaw v Briginshaw (1938) 60 CLR 336, cited Cheung v The Queen (2001) 209 CLR 1, followed R v Gill; ex parte Attorney-General (Qld) (2004) 146 A Crim R 12, cited R v Morrison [1999] 1 Qd R 397, cited R v Parker [2011] QCA 198, cited R v Witchard [2005] 1 Qd R 428, followed
COUNSEL:	A Kimmins for the applicant P McCarthy for the respondent
SOLICITORS:	Gatenby Criminal Law for the applicant Office of Director of Public Prosecutions for the respondent