Tan v The Queen

Case [2013] NSWCCA 262

Court of Criminal Appeal

New South Wales
Case Title: Tan v R
Medium Neutral Citation: [2013] NSWCCA 262
Hearing Date(s): 21 October 2013
Decision Date: 12 November 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [56]
Bellew J at [57]
Decision:

Application for extension of time dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - inflicting grievous bodily harm with intent to cause grievous bodily harm - applicant sentenced in December 2008 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - importance of principle of finality - whether substantial injustice would result if an extension of time were refused - prospects of success of application for leave to appeal - application of s6(3) of the Criminal Appeal Act 1912 - re-exercise of sentencing discretion by Court of Criminal Appeal if "Muldrock error" made out - no lesser sentence warranted in law - application for extension of time dismissed.
Legislation Cited: Crimes Act 1900 - s33(1)(b), s59(1)
Criminal Appeal Act 1912 (NSW) - s6(3)
Cases Cited: Abdul v R [2013] NSWCCA 247
AM v R [2012] NSWCCA 203
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Butler v R [2012] NSWCCA 23
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
FP v R [2012] NSWCCA 182
Franklin v R [2013] NSWCCA 122
Hamid v R [2006] NSWCCA 303; 164 A Crim R 179
King v R [2010] NSWCCA 33
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Martin v R [2011] NSWCCA 188
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Perry v R [2006] NSWCCA 351; 166 A Crim R 383
Qoro v R [2008] NSWCCA 220
R v Dang [2005] NSWCCA 430
R v Fisher [2008] NSWCCA 103
R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94
Stanford v R [2007] NSWCCA 73
Zarakas v R [2013] NSWCCA 144
Category: Principal judgment
Parties: Tiong Ching Tan - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
Ms B Rigg - Applicant
Ms N Noman SC - Respondent Crown
- Solicitors: Solicitors:
S O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2008/7049
Decision Under Appeal
- Before: Finnane DCJ
- Date of Decision:  23 December 2008
- Court File Number(s): 2008/7049

JUDGMENT

  1. HOEBEN CJ at CL:

    Offence and sentence
    On 8 October 2008 the applicant was found guilty by a jury of an offence of inflicting grievous bodily harm with intent to cause grievous bodily harm, contrary to s33(1)(b) of the Crimes Act 1900. The maximum penalty for this offence is imprisonment for 25 years and there is a standard non-parole period of 7 years. The offence occurred on 30 September 2007. The applicant was also found guilty of an…

Continue reading Tan v The Queen

Sign in free to access the full text

Details
AGLC
Tan v The Queen [2013] NSWCCA 262
Case
[2013] NSWCCA 262
Decision Date

CaseChat Overview and Summary

The case of Tan v The Queen involves an appeal against sentence by the applicant, who was convicted of inflicting grievous bodily harm with intent. The applicant was sentenced in December 2008 and sought an extension of time for leave to appeal against his sentence, arguing that the decision in Muldrock v The Queen entitled him to such an extension. The central legal issue before the court was whether the applicant was entitled to an extension of time under section 6(3) of the Criminal Appeal Act 1912, given the "Muldrock error" in the sentencing process. The court also needed to consider whether a substantial injustice would result if the extension was refused and assess the prospects of success of the application for leave to appeal.

The court reasoned that the "Muldrock error" did not warrant an extension of time as the applicant had not demonstrated that a substantial injustice would result if the extension was refused. The court noted that while the sentencing judge had adopted a two-stage approach and given primary significance to the standard non-parole period, this did not constitute a significant error that would warrant an extension of time. The court also found that the applicant had not shown that there was no lesser sentence warranted in law and that the re-exercise of sentencing discretion by the Court of Criminal Appeal was not warranted. Accordingly, the application for an extension of time was dismissed.

The court's decision highlights the importance of the principle of finality in criminal sentencing and the need for applicants to demonstrate a substantial injustice if they are to be granted an extension of time for leave to appeal. The court also emphasised the need for applicants to assess the prospects of success of their application for leave to appeal and to demonstrate that the re-exercise of sentencing discretion by the Court of Criminal Appeal is warranted. In this case, the applicant had not made out these requirements, and the application for an extension of time was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It was common ground between the applicant and the Crown that "Muldrock error" had occurred in the sentencing process in that the sentencing judge had adopted a two-stage approach and gave primary significance to the standard non-parole period by focusing on whether there were reasons for not imposing it. On that issue generally, this judgment should be read with Abdul v R [2013] NSWCCA 247.Factual background to the offence The victim came to Australia from Malaysia on a student visa but with the intention of working at the Wild Orchid brothel in Sydney, run by a woman referred to in the proceedings as "Mummy". The applicant met the victim while she was working in this capacity and they formed a relationship. They had been living together for about six months in an apartment in the city when these offences occurred. The applicant is a strongly built man and the victim is a relatively slightly built woman. On an occasion during September 2007 the applicant commenced interrogating the victim because of his belief that she was involved in a scam marriage with the son of "Mummy". She denied this. The applicant assaulted her in the context of trying to get information from her. The victim's evidence was that he kicked her once in the back. He kept questioning her and she was hit again. He used his closed fist. She was hit to the middle of the forehead and both eyes. It affected her eyes and both eyes were bleeding. He punched her three or four times. He punched her fairly hard with his full force. She was then kicked somewhere in the lower or middle of her back and just below the right shoulder blade. The assault lasted about half an hour. Another element of this offence was that the applicant kept asking her questions and said "If you don't tell me the truth I will kill you". He was holding a cleaver for cutting pork when he said that. He hit her on the head with the blunt side of the cleaver. The victim did not go to the hospital. She took Panadol and some Chinese medicine because he told her to take medication otherwise he would kill her. After she took that medication, she felt dizzy and had a headache but the applicant took his belt, put it round her neck and pulled her. He was laughing. The belt was very tight and she tried to resist with her hand and kicked him. He held it around her neck for about five minutes. The applicant then put a small wet towel on her face and continued to laugh. He kicked her in the back again. These were the matters which formed the basis of the applicant's conviction for the offence of assault occasioning actual bodily harm. The victim's evidence was that on the evening of 30 September 2007 the applicant again assaulted her, following further argument about the same issue. She said that when he hit her it was painful and blood was coming out of her eyes. She fell to the ground. He lifted a clothes-stand made of steel and hit her with that on her shoulder. He hit her with the knuckles of a closed fist, first to the left eye which was not very painful, but after that on the right eye. He punched her once to the left eye and three times to the right eye with his full force. Her vision was not good, it was blurred, there was bruising and her eyes were swollen so it was very hard to see.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HOEBEN CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The applicant asked that the Court take into account that no weapon was used and that the offence was not found to have been planned in any way. The applicant submitted that the Court should take into account that he was a man of good character insofar as Australia was concerned and that his conditions of custody in Australia were harsh because of lack of visits or support from family.Consideration The factual errors were not as great as submitted by the applicant, although there were some. The victim's statement to the police on the night of the incident referred to her being beaten for an hour, but did not refer to her being kicked for half an hour. That statement also referred to her being kicked during the course of the attack and being hit with a belt. While it was, strictly speaking, incorrect to say that the victim's cheekbones were fractured, the lower part of both orbits were fractured which are contiguous to what is commonly known as the cheekbone. Both cheekbones were swollen. The reference to the "eye falling from the eye socket" was a shorthand way of describing what Dr Tybell said at [16] hereof. It was, however, quite incorrect to say that the injuries were such that they may have caused the victim's death. I do not regard these errors to be of particular significance. It needs to be remembered that the judgment was given ex tempore at the conclusion of the sentence submissions. As his Honour appreciated, it was not only the injuries themselves which were of significance, but the circumstances in which they were inflicted. In AM v R [2012] NSWCCA 203 Johnson J (with whom McClellan CJ at CL and Garling J agreed) said:"73 The absence of planning and premeditation is relevant to objective gravity, although this feature may be diminished (as a factor favouring the offender) given the requisite intention for a s.33 offence: R v Zamagias at [14]. This is expressly so where the attack is sustained and there are opportunities for the offender to desist from the attack but he does not do so: R v Westerman [2004] NSWCCA 161 at [17]. ..." The attack was savage and sustained. Dr Tybell pointed out that a significant amount of force and quite a heavy blow was required to break the orbital bones. It was incorrect to say that no weapon was used in the course of the beating, because the victim was struck with a clothes-stand made of steel. The applicant's submissions focused entirely upon the physical injuries received by the victim, but said nothing about the psychological injuries. In her Victim Impact Statement of 8 November 2008 the applicant stated that she had been in constant pain since the incident, had not been able to eat or sleep well and had constant nightmares about the applicant. She said "I feel so scared for my safety that I can't leave home. Even now I can't sleep some nights from constantly thinking about what [the applicant] had done to me. ..." The applicant's submissions in relation to the objective seriousness of the offence, made no mention of the maximum penalty for this offence which is imprisonment for 25 years. In that regard, there is some incongruity in the legislature providing that the standard non-parole period for a "mid-range offence" is imprisonment for 7 years when compared with the maximum penalty. In any event, as a result of Muldrock, a sentencing court is not to focus upon the standard non-parole period but is to treat it as a guidepost just like the maximum sentence for the relevant offence.