Legal Research
Cases
Shau v The Queen

Shau v The Queen

Case [2020] VSCA 252 25 September 2020

Cumulation of Sentences

Totality Principle

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0123

DIDIER LAM KEE SHAU	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2020
DATE OF JUDGMENT:	25 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 252
JUDGMENT APPEALED FROM:	[2019] VCC 688 (Judge Smith)

---

CRIMINAL LAW – Appeal – Sentence – Recklessly causing injury – Reckless conduct endangering life – Violent attack on wife and third party who tried to protect her – Plea of guilty – Recklessly causing injury sentence 3 years’ imprisonment – Reckless conduct endangering life sentence 3 years’ imprisonment – Cumulation 2 years – Total effective sentence 5 years’ imprisonment – Non-parole period 3 years and 6 months – Whether sentence for recklessly causing injury manifestly excessive – Whether order for cumulation manifestly excessive – Whether order for cumulation offends principle of totality – Whether total effective sentence manifestly excessive – Whether non-parole period manifestly excessive – Serious domestic violence – Although close in time, discrete criminal acts against different victims – Sentence within available range – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Nelson Brown Legal
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Having had the benefit of full oral argument, and the advantage of reading the persuasive analysis within the reasons of Niall JA, I agree that the appeal should be dismissed.

As I observed when granting leave to appeal,[1] the seriousness of the offence of recklessly causing injury in this case ‘is not only to be gauged by the injuries caused, but also the manner of their infliction[2] (in this case a protracted and very violent assault on a vulnerable victim)’.[3] Ultimately, giving full weight to the appellant’s plea of guilty and other mitigating circumstances — notwithstanding that I consider the sentence on charge 1 to be stern — for the reasons given by Niall JA I am not satisfied that the sentence imposed for recklessly causing injury is manifestly excessive.
[1]Shau v The Queen (Unreported, Court of Appeal, Priest JA, 7 May 2020), [40].
[2]Phillips v The Queen [2017] VSCA 313, [54].
[3]Viewing the CCTV footage, which I have done, is a harrowing experience. To see the applicant punch his wife several times is bad enough. But to then see him viciously stomp on her head repeatedly is sickening and acutely distressing.

Similarly, although, had I been the sentencing judge, I would have been inclined to order less cumulation between the individual sentences,[4] in the end I am not persuaded that the degree of cumulation ordered was altogether outside the appropriate range; infringed the principle of totality; or led to a manifestly excessive total effective sentence. In those circumstances, the wholly conventional non-parole period imposed is unassailable.

[4]In the circumstances, it is unnecessary to consider whether it was appropriate that the sentence on charge 1 be the base sentence. See R…

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 Shau v The Queen

Details

AGLC: Shau v The Queen [2020] VSCA 252
Case: [2020] VSCA 252
Decision Date: 25 September 2020

CaseChat Overview and Summary

In the case of Shau v The Queen, the appellant was convicted for his involvement in a violent domestic dispute, resulting in injuries to his wife and a third party who attempted to intervene. The case came before the court on appeal against the sentence imposed, which included a total effective sentence of five years' imprisonment, with a non-parole period of three years and six months. The appellant contested the severity of his sentence, arguing that it was manifestly excessive, particularly the order for cumulation and the total effective sentence. He also contended that the non-parole period was excessive.

The primary legal issues for the court to decide were whether the sentence for recklessly causing injury was manifestly excessive, whether the order for cumulation was manifestly excessive and offended the principle of totality, and whether the total effective sentence and the non-parole period were manifestly excessive. The court considered the principles of sentencing, including the need for appropriate punishment and deterrence, and the importance of maintaining the principle of proportionality and totality in sentencing.

The court found that the sentence imposed was within the available range and appropriate for the appellant's conduct, which involved serious domestic violence. The court acknowledged the discrete nature of the criminal acts against different victims, despite their proximity in time. The court concluded that the sentence was not manifestly excessive, and the order for cumulation did not offend the principle of totality. Consequently, the appeal was dismissed, and the original sentence was upheld.

There were no additional orders made by the court beyond the dismissal of the appeal.

Orders