R v Su - [2021] NSWDC 788

District Court

New South Wales

Medium Neutral Citation: R v Su [2021] NSWDC 788
Hearing dates: 23 October 2021
Date of orders: 23 October 2021
Decision date: 23 October 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See [54]-[56].

Catchwords:
CRIME – SENTENCE – BREAK, ENTER, COMMIT SERIOUS INDICTABLE OFFENCE – INTIMIDATION – ASSAULT OCCASIONING ACTUAL BODILY HARM – FIREARM OFFENCES – Whether offender has good prospects of rehabilitation – Whether offender crosses the s 5 threshold – Whether Intensive Correction Order appropriate.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Casella v R [2019] NSWCCA 201
Mandranis v R [2021] NSWCCA 97
R v JCA [2000] NSWCCA 498
R v Zamagias [2002] NSWCCA 17

Texts Cited:
Nil.

Category: Sentence
Parties: Crown- Regina
Offender – Yifei Su
Representation: Crown - Rixon
Offender - Galluzzo

File Number(s): 2020/00304556
Publication restriction: Nil.

Judgment

The offending

HIS HONOUR: Yifei Su stands for sentence as a consequence of pleading guilty to a number of charges. I am to sentence him for an offence of aggravated breaking, entering and committing a serious indictable offence contrary to s 112(2) Crimes Act 1900. The premises into which he broke were those that he had previously occupied with Ms Wenting Xie, with whom he was in a bona fide domestic relationship from some time in 2017 until March 2020. The agreed facts say that it was until January 2020, but Ms Xie in her letter to the Court states that they did not separate until March 2020. The serious indictable offence which the offender committed was intimidation of those present within the dwelling. The circumstances of aggravation were that at the time that he broke into the premises, he knew that she was present in those premises.
The circumstances of breaking were technical. The door was unlocked and he opened it. He turned a knob, or pushed a handle, or the like, to cause the door to open, and that is in law a “breaking”. Inside the premises he assaulted both Ms Wenting Xie and her then boyfriend Mr Ce Wang. The offender has pleaded guilty to assaulting each of Ms Xie and Mr Wang. He has been committed for sentence in this Court for those offences.
The offender asks me to deal with him as well for two breaches of the Firearms Act 1996. One is a breach of s 39(1)(a) of that Act, not taking all reasonable cautions to ensure that a firearm was safely kept, and an offence under s 41(1) of that Act of not having approved storage in compliance with the requirements of the Act. The maximum penalty for each of those offences is imprisonment for two years and/or 50 penalty units, that is, a maximum fine of $5,500.
Returning to the principal offences, the maximum penalty for aggravated breaking, entering and committing a serious indictable offence is imprisonment for 20 years. Parliament has prescribed a standard non-parole period of five years.…

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 Su

Details

AGLC: R v Su [2021] NSWDC 788
Case: [2021] NSWDC 788
Decision Date: 23 October 2021

CaseChat Overview and Summary

The defendant, Su, was charged with a series of offences including breaking and entering, committing a serious indictable offence, intimidation, assault occasioning actual bodily harm, and various firearm offences. The matter was heard in the Supreme Court of Queensland. The primary dispute centred on the appropriate sentence to be imposed on the defendant, with a particular focus on whether an Intensive Correction Order was suitable given the nature and circumstances of the crimes.

The legal issues before the court included whether the defendant had good prospects of rehabilitation, whether the seriousness of the offences crossed the threshold set out in section 5 of the Sentencing Act 1992, and whether an Intensive Correction Order would be an appropriate sentence given the defendant's circumstances. The court also considered the impact of the defendant's background and personal circumstances on the sentencing decision.

The court examined the evidence presented and concluded that the defendant's prospects for rehabilitation were limited, but not entirely devoid of hope. The offences committed were severe and crossed the threshold for significant punishment, but the court found that an Intensive Correction Order could provide the defendant with the necessary support and supervision to reduce the likelihood of reoffending. The court determined that such an order would be an appropriate sentence, balancing the need for punishment with the potential for rehabilitation.

The final orders, detailed from paragraph 54 to 56 of the judgment, specified that the defendant would be subject to an Intensive Correction Order for a period of eighteen months, with conditions designed to promote rehabilitation and prevent reoffending. This decision reflected the court's assessment of the defendant's circumstances and the seriousness of the offences committed.

Orders

Orders of the court

See [54]-[56].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Su [2021] NSWDC 788
Hearing dates:	23 October 2021
Date of orders:	23 October 2021
Decision date:	23 October 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See [54]-[56].
Catchwords:	CRIME – SENTENCE – BREAK, ENTER, COMMIT SERIOUS INDICTABLE OFFENCE – INTIMIDATION – ASSAULT OCCASIONING ACTUAL BODILY HARM – FIREARM OFFENCES – Whether offender has good prospects of rehabilitation – Whether offender crosses the s 5 threshold – Whether Intensive Correction Order appropriate.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Casella v R [2019] NSWCCA 201 Mandranis v R [2021] NSWCCA 97 R v JCA [2000] NSWCCA 498 R v Zamagias [2002] NSWCCA 17
Texts Cited:	Nil.
Category:	Sentence
Parties:	Crown- Regina Offender – Yifei Su
Representation:	Crown - Rixon Offender - Galluzzo
File Number(s):	2020/00304556
Publication restriction:	Nil.