Sun v R

Case [2011] NSWCCA 99 28 April 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SUN, Yee Sing v Regina [2011] NSWCCA 99
Hearing dates: 15 April 2011
Decision date: 28 April 2011
Before: Campbell JA at [1], RS Hulme J at [52], Adams J at [53]
Decision:
1.Grant leave to appeal.
2.Allow the appeal.
3.Set aside the sentence imposed on the Applicant in the court below.
4.In lieu thereof, order that he be sentenced to a non-parole period commencing 11 August 2008 and expiring 25 February 2011, with a balance of term expiring 11 November 2012.

Catchwords: CRIMINAL LAW - sentencing - appeal against sentence - s 61K(b) Crimes Act 1900 - threaten to inflict actual bodily harm with intent to have sexual intercourse - incorrect finding that applicant had not expressed remorse - weight to be placed on offender's unverified statement of remorse - objective seriousness of offence - effect of offender having unusual and irrational motive - effect of court not being satisfied there was an intention to inflict actual bodily harm
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Summary Offences Act 1988
Cases Cited: Alvares v R [2011] NSWCCA 33
Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284
O'Donnell v Regina (Court of Criminal Appeal, 12 May 1997, unreported)
Pfitzner v R [2010] NSWCCA 314
R v Butters [2010] NSWCCA 1
R v Capar [2002] NSWCCA 285; (2002) 132 A Crim R 160
R v Elfar [2003] NSWCCA 358
R v McGourty [2002] NSWCCA 335
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Storey [1998] 1 VR 359
R v Tsokos (Court of Criminal Appeal, 19 June 1995, unreported) (incorrectly cited as [1995] NSWCA 388)
TS v R [2007] NSWCCA 194
Webster v Regina [2006] NSWCCA 346
Category: Principal judgment
Parties: Yee Sing SUN (Applicant)
The Crown (Respondent)
Representation: Counsel:
C Loukas (Applicant)
S Dowling (The Crown)
Solicitors:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (The Crown)

File Number(s): 2009/4880
Decision under appeal

Date of Decision:

2010-04-16 00:00:00

Before:

Sorby DCJ

File Number(s):

2009/4880

Judgment

The Applicant pleaded guilty to a charge that on a date in August 2008 at Killara he, with intent to have sexual intercourse with a person who I shall refer to as DE, threatened to inflict actual bodily harm on her by means of an offensive weapon, being a knife. That charge arises under s 61K Crimes Act 1900. The penalty that s 61K prescribes for it is imprisonment for 20 years. No standard non-parole period is prescribed concerning it.

The Applicant asks to have taken into account, on a Form 1, a charge that on the same day in August 2008 at Killara he, without reasonable excuse, had in his custody a box cutter knife in…

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 Sun v R

Details

AGLC: Sun, Yee Sing v Regina [2011] NSWCCA 99
Case: [2011] NSWCCA 99
Decision Date: 28 April 2011

CaseChat Overview and Summary

The applicant, Sun, appealed against a sentence imposed after being convicted of threatening to inflict actual bodily harm with intent to have sexual intercourse, contrary to s 61K(b) of the Crimes Act 1900. The primary issue before the court was whether the primary judge erred in failing to take into account the applicant's unverified statement of remorse and whether the sentence imposed was excessive. The court also considered the impact of the applicant's unusual and irrational motive on the seriousness of the offence and whether the primary judge's finding that there was no intention to inflict actual bodily harm was correct.

The court examined the principles governing the assessment of sentences in the context of appeals and the factors that should be considered when evaluating an offender's remorse. It noted that while an unverified statement of remorse could be relevant, it should not be given undue weight. The court also discussed the objective seriousness of the offence and how the offender's motive and the primary judge's finding on the intention to inflict actual bodily harm should be considered in the sentencing process. The court concluded that the primary judge did not err in the manner in which they assessed the sentence and that the sentence imposed was not excessive.

In light of the court's findings, the appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of considering the offender's motive and the primary judge's findings when assessing the seriousness of the offence and the appropriateness of the sentence. It also highlighted the need for a balanced approach when evaluating an offender's remorse, ensuring that it is given appropriate weight without being the sole determining factor in the sentencing process.

Orders