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Suksa-Ngacharoen v R

Suksa-Ngacharoen v R

Case [2018] NSWCCA 142 10 August 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Suksa-Ngacharoen v Regina [2018] NSWCCA 142
Hearing dates: 4 June 2018
Date of orders: 10 August 2018
Decision date: 10 August 2018
Before: Leeming JA and Bellew J at [1]
Wilson J at [24]
Decision:
1. Grant leave to appeal.
2. Appeal allowed.
3. Quash the sentence imposed on 28 October 2016, and in lieu thereof, sentence the offender as follows:
(a) Call-up for Common Assault (breach s 9 bond): 3 months imprisonment to date from 10 March 2014, expiring on 9 June 2014.
(b) Call-up for Contravene ADVO (breach s 12 bond): 7 months imprisonment to date from 10 March 2014, expiring on 9 October 2014.
(c) Contravene ADVO: 18 months imprisonment to date from 10 July 2014, expiring on 9 January 2016.
(d) Cause grievous bodily harm by explosion: 16 years imprisonment to date from 10 March 2015, expiring on 9 March 2031; with a non-parole period of 11 years, expiring on 9 March 2026.
4. The total effective sentence is 17 years imprisonment, with a non-parole period of 12 years. The earliest date the offender is eligible for release on parole is 9 March 2026.

Catchwords: CRIME – sentence appeal – domestic violence offences – cause grievous bodily harm by explosion – breach apprehended domestic violence order – call-ups for breaches of bonds – question of procedural fairness – use of “agreed facts” and whether sentencing court bound by them - question of extent of premeditation – assessment of objective gravity – assessment of remorse and rehabilitation – manifest excess
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Alvares v R; Farache v R [2011] NSWCCA 33
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Chow v Director of Public Prosecutions & Anor (1992) 28 NSWLR 593
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198
Jolly v R [2013] NSWCCA 76
Kendall v R [2015] NSWCCA 13
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MLP v R [2014] NSWCCA 183
O’Neill-Shaw v The Queen [2010] NSWCCA 42
Pleasance v R [2016] NSWCCA 113
Porter v R [2008] NSWCCA 145
R v Dinh [2010] NSWCCA 74
R v Dodd (1991) 57 A Crim R 349
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Palu [2002] NSWCCA 381; 134A Crim R 174
R v Shorten (unreported decision of the NSW Court of Criminal Appeal, 10 September 1997)

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 Suksa-Ngacharoen v R

Details

AGLC: Suksa-Ngacharoen v Regina [2018] NSWCCA 142
Case: [2018] NSWCCA 142
Decision Date: 10 August 2018

CaseChat Overview and Summary

The appellant was convicted and sentenced in the County Court of Victoria for causing grievous bodily harm by explosion, breaching an apprehended domestic violence order, and committing multiple breaches of a personal safety bond. The appellant appealed the sentence on the grounds that the County Court erred in its assessment of the objective gravity of the offending, the degree of premeditation, and the extent of his remorse and rehabilitation. The respondent argued that the appeal should be dismissed.
The appeal raised several issues, including whether the sentencing court was bound by the agreed facts and the extent to which it was bound by those facts. The appeal also questioned whether the sentencing court had erred in its assessment of the objective gravity of the offending and the degree of premeditation. Finally, the appeal challenged the assessment of the appellant's remorse and rehabilitation.
The Court held that the sentencing court was not bound by the agreed facts but could consider them as a starting point. The Court found that the sentencing court had erred in its assessment of the objective gravity of the offending and the degree of premeditation. The Court also found that the sentencing court had erred in its assessment of the appellant's remorse and rehabilitation. The Court held that the sentence was a manifest excess and ordered a re-sentencing.

Order: The appeal is allowed. The convictions are affirmed. The sentence is quashed and the matter is remitted to the County Court for re-sentencing.

Orders