Regina v BAE - [1999] NSWCCA 290

CITATION: REGINA v BAE [1999] NSWCCA 290

FILE NUMBER(S): CCA 60516/98

HEARING DATE(S): 13 September 1999

JUDGMENT DATE:
17 September 1999

PARTIES :

The Crown
Shang Hyun Bae

JUDGMENT OF: Wood CJ at CL at 1; Newman J at 2; Foster AJ at 36

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70079/97

LOWER COURT JUDICIAL OFFICER: B M James J

COUNSEL: M G Sexton SC (Crown)
P Bodor QC (Appl)

SOLICITORS: S E O'Connor (Crown)
Peter Ash & Associates (Appl)

CATCHWORDS: CRIMINAL LAW; sentence; maliciously inflicting grievous bodily harm; parity; worst type of case

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606 at 610
Ibbs v The Queen (1987) 163 CLR 447 at 449-452
Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 478

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60516/99

WOOD CJ at CL
NEWMAN J
FOSTER AJ

FRIDAY, 17 SEPTEMBER 1999

REGINA v Shang Hyun BAE

JUDGMENT

1    WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Newman J. I agree with his reasons and the orders he proposes.
2 NEWMAN J: This is an application for leave to appeal against the severity of a sentence passed by B M James J on 2 September 1998. The applicant had been convicted of the crime of maliciously inflicting grievous bodily harm contrary to the provisions of s 35 of the Crimes Act 1900 which carries a maximum penalty of seven years penal servitude.
3    Before his Honour the applicant had been jointly indicted with one Chong Mun Chai on two counts of murder. The count alleging maliciously inflicting grievous bodily harm was laid in the alternative.
4    In the event the jury acquitted the applicant of murder but found him guilty on the alternative charge. His Honour sentenced the applicant to a total sentence of five years constructed as to a minimum term of three years and three months and an additional term of one year and nine months.
5    The applicant was tried as a consequence of events which happened at Kings Cross on 30 January 1997. He was an associate of his co-accused who owned a number of restaurants and bars in the Sydney area. Both he and his co-accused are Korean nationals. One of those businesses known as the Ehwa Karaoke Bar was situated at Kings Cross.
6    Earlier in 1997, namely on 6 January 1997, an episode of violence had occurred at a Korean restaurant known as the Beewon Restaurant at Kings Cross. That incident had involved other Korean nationals including one Duck Hwan Kim .
7    At the time of this violent episode, another Korean national, one Sang Hoon Lee was working in the Beewon restaurant and had fled from the scene finding sanctuary at the Ehwa Karaoke Bar. It appears that concern existed amongst Korean businessmen in Sydney that Korean gangs were causing trouble at business establishments owned by Korean nationals.
8    On the…

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

Case: [1999] NSWCCA 290
Decision Date: 17 September 1999

CaseChat Overview and Summary

In the case of Regina v BAE, the defendant was convicted for maliciously inflicting grievous bodily harm on the victim. The matter was brought before the Court of Appeal to review the sentence imposed by the trial court. The defendant argued that the sentence was excessive and disproportionate to the severity of the offence, while the Crown contended that the sentence was appropriate given the circumstances. The court was tasked with determining whether the sentence was proportionate to the crime and whether there were any errors in the trial court's sentencing process.

The primary legal issue before the court was whether the sentence imposed by the trial court was manifestly excessive and not in accordance with the principles of parity. The court considered the principles of sentencing, including the need for punishment, deterrence, and rehabilitation. The court also examined the severity of the offence, the nature of the harm caused to the victim, and the circumstances surrounding the crime. Additionally, the court assessed whether there were any errors in the trial court's application of the sentencing principles.

In its judgment, the court found that the sentence imposed by the trial court was not manifestly excessive and did not contravene the principles of parity. The court held that the trial judge had properly considered the relevant sentencing principles and had taken into account the severity of the offence and the harm caused to the victim. The court also noted that the sentence was within the range of penalties that could be imposed for the offence. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court. The defendant's appeal against the sentence was unsuccessful, and the trial court's decision was affirmed.

Orders