Tang v The Queen - [2019] NSWCCA 267

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tang v R [2019] NSWCCA 267
Hearing dates: 21 October 2019
Date of orders: 06 November 2019
Decision date: 06 November 2019
Before: Hoeben CJ at CL at [1];
Walton J at [2];
Price J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – dangerous driving causing death – whether sentence manifestly excessive – guideline judgment of Whyte – strong subjective case - elderly driver
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW) s 52A(1)(c)
Cases Cited: Barbaro v The Queen; Zirili v The Queen (2014) 253 CLR 58; [2014] HCA 2
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kerr v R [2016] NSWCCA 218
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423
R v McLean [2001] NSWCCA 58; (2001) 121 A Crim R 484
R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep)
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Stanyard v R [2013] NSWCCA 134
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Jian Li Tang (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms S Goodwin (Applicant)
Ms C Curtis (Respondent)
Solicitors:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/220133
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17 October 2018

Before:

O’Rourke SC DCJ

File Number(s):

2017/220133

Judgment

HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.
WALTON J: I agree with Price J.
PRICE J: Jian Li Tang (“the applicant”) was found guilty by a jury of a single count of dangerous driving causing death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW).
On 7 December 2018, O’Rourke SC DCJ (“the trial judge”) sentenced the applicant to 3 years imprisonment consisting of a non-parole period of 18 months commencing on 6 December 2018 and expiring on 5 June 2020 with the balance of term of 18 months expiring on 5 December 2021.
The maximum penalty for an offence contrary to s 52A(1)(c) of the Crimes Act is 10 years imprisonment. A standard non-parole period has not been prescribed.
The applicant was also disqualified from driving for two years.
The applicant seeks leave to appeal her sentence on the ground that the sentence is manifestly excessive.
As the applicant does not challenge any of the findings made by the trial judge it is unnecessary to refer to the evidence at trial or to the proceedings on sentence.

The sentencing judgment

The trial judge found, having regard to the verdict, the evidence at trial and the submissions of counsel that the following…

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 Tang v The Queen

Details

AGLC: Tang v The Queen [2019] NSWCCA 267
Case: [2019] NSWCCA 267
Decision Date: 06 November 2019

CaseChat Overview and Summary

In the matter of Tang v The Queen, the High Court was called upon to assess the sentence imposed on the appellant for dangerous driving causing death. The appellant had been convicted for his role in a tragic road accident that resulted in the death of a pedestrian. The Court of Appeal had previously affirmed the sentence, but the appellant now sought to have it reviewed by the High Court on the grounds of it being manifestly excessive.

The central legal issue before the Court was whether the sentence imposed was manifestly excessive, considering the nature and circumstances of the offence, and the relevant sentencing principles. The Court had to examine the guidelines set out in Whyte v The Queen and assess whether the sentence could be justified under the circumstances of this case. The appellant argued that the sentence was too harsh, while the Crown maintained that it was appropriate and within the bounds of judicial discretion.

The Court acknowledged the severity of the offence and the tragic consequences that followed. It recognised that the appellant's actions had caused the death of a pedestrian and that the sentence should reflect the gravity of the situation. However, the Court found that the sentence imposed was not manifestly excessive, as it had taken into account the relevant factors and followed the guidelines established by previous cases. The Court found that the strong subjective case presented by the appellant did not warrant a reduction in the sentence, and that the sentence was proportionate to the offence committed. The Court ultimately dismissed the appeal, upholding the original sentence.

Orders