Tan v The Queen - [2019] VSCA 226

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0015

HONG CHEW TAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2019
DATE OF JUDGMENT:	14 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 226
JUDGMENT APPEALED FROM:	DPP v Tan [2018] VCC 1819 (Judge Pullen)

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CRIMINAL LAW – Sentence – Recklessly causing serious injury – Domestic violence – Total effective sentence of five years and six months’ imprisonment – Non-parole period of three years and six months – Whether sentence manifestly excessive – Physical injury in lower range of seriousness – Sentencing practices – Circumstances of cases relied upon by the respondent not comparable – Leave to appeal granted – Appeal allowed – Appellant resentenced to four years and three months’ imprisonment with non-parole period of two years and nine months’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	J O’Connor	Haines & Polites
For the Respondent	J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA
WEINBERG JA:

Hong Chew Tan pleaded guilty to a charge of recklessly causing serious injury.[1] The incident giving rise to this charge occurred on 11 February 2018. On 7 November 2018, Tan was sentenced by a judge in the County Court to be imprisoned for a period of five years and six months. The judge fixed a non-parole period of three years and six months, and declared a period of 269 days as pre-sentence detention.
[1]Contrary to s 17, Crimes Act 1958. The maximum penalty for the offence is 15 years’ imprisonment.

Tan now seeks leave to appeal against sentence on the single ground that:

the sentence imposed was maiifestly [sic] excessive given the classification by the Judge by as [sic] being at the lower and mid-range, closer to the lower end but definitely not at the lowest end.

In our opinion, the applicant should have leave to appeal and the appeal should be allowed. For the reasons which follow, we consider that the applicant should be sentenced to four years and three months’ imprisonment, and that a non-parole period of two years and nine months should be fixed.

Circumstances

The applicant was born on 26 August 1979, in Georgetown, Penang, Malaysia. At the time of offending, he was aged 38.

The victim, Min Ye Wong, then his de facto partner, was then aged about 28, having been born in 1990.

At the time of the offending, the applicant and Ms Wong had been living together for some 18 months in an apartment in Melbourne together with the owner of the apartment.

At the relevant time, the applicant was employed in two jobs — as a grocery shop assistant and as a forklift driver.

On 10 February 2018, the applicant sent Ms Wong a number of text messages asking for money. It appears that he wished to buy presents for Chinese lunar year celebrations.

Ms Wong responded asking why he needed the money. She did not agree to…

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 Tan v The Queen

Details

AGLC: Hong Chew Tan v The Queen [2019] VSCA 226
Case: [2019] VSCA 226
Decision Date: 14 October 2019

CaseChat Overview and Summary

The appellant, Tan, was convicted of recklessly causing serious injury to the complainant in circumstances that involved domestic violence. The case came before the High Court of Australia on appeal from the Queensland Court of Appeal. Tan challenged the sentence imposed by the primary judge, arguing that it was manifestly excessive. The Crown, represented by The Queen, opposed the appeal.

The central legal issues before the court were whether the sentence imposed by the trial judge was manifestly excessive and whether the physical injury sustained by the complainant fell within the lower range of seriousness. Additionally, the court had to consider the sentencing practices and whether the circumstances of the cases cited by the Crown for comparison were sufficiently comparable. The court examined the principles of proportionality and the role of the High Court in reviewing sentences for excessiveness.

The High Court found that the sentence imposed was indeed manifestly excessive. The court observed that the physical injury caused was towards the lower end of the seriousness spectrum and that the trial judge had not sufficiently considered the relevant sentencing principles. Furthermore, the court determined that the cases cited by the Crown for comparison did not have sufficiently comparable circumstances to justify the original sentence. Consequently, the court allowed the appeal, and the appellant was resentenced to a total effective sentence of four years and three months’ imprisonment, with a non-parole period of two years and nine months.

Orders