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Wan v The Queen; R v Wan

Wan v The Queen; R v Wan

Case [2019] NSWCCA 86 29 April 2019

Inadequate Sentencing

Victim Impact

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wan v R; R v Wan [2019] NSWCCA 86
Hearing dates: 4 April 2019
Date of orders: 29 April 2019
Decision date: 29 April 2019
Before: Macfarlan JA at [1];
R A Hulme J at [56];
Davies J at [127]
Decision:
(1) Grant leave to appeal in respect of the applicant’s convictions.
(2) Dismiss the conviction appeal.
(3) Sentence appeal allowed.
(4) Sentence imposed in the District Court on 30 August 2018 quashed.
(5) The respondent is sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years. The sentence is to date from 18 August 2016. The respondent will become eligible for release on parole upon the expiry of the non-parole period on 17 August 2021.

Catchwords:
CRIME — appeals — appeal against conviction — sexual offences — whether convictions unreasonable — whether open to jury to convict on the basis of video footage of the incidents — whether acquittals including a charge of drugging victim inconsistent with guilty verdicts on other charges
SENTENCING — Crown appeal against inadequacy of sentence — sexual assault and indecent assault offences — elderly victim — offences committed while victim incapacitated — offences video recorded and used to humiliate victim — prior relationship of friendship not a mitigating factor — error in not regarding victim as vulnerable due to old age — assessment of objective seriousness of offences open — errors in referring to principles and statutory provisions but no reasoning as to application — victim impact statement ignored — error in application of totality principle — aggregate sentence manifestly inadequate — discretion to intervene exercised — respondent re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(l), 44(2B), 54B(4)
Crimes Act 1900 (NSW), ss 38(a), 61 I, 61L
Crimes Act 1914 (Cth), s 20(1)(a)
Criminal Appeal Act 1912 (NSW), ss 5D(1), 6(1)
Criminal Code 1995 (Cth), s 471.12
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
Cases Cited: Davis v R [2018] NSWCCA 277
Green and Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Holloway v R [2017] NSWCCA 17
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Marland v R [2017] NSWCCA 277
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
MG v R [2017] NSWCCA 14
Mulato v R [2006] NSWCCA 282
Nguyen v The Queen [2017] NSWCCA 145
NM v R [2012] NSWCCA 215
R v BA [2014] NSWCCA 148
R v Dinsdale (2000) 202 CLR 321; [2002] HCA 54
R v Hunter (1984) 36 SASR 101
R v Lachlan [2015] NSWCCA 178; (2015) 252…

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 Wan v The Queen; R v Wan

Details

AGLC: Wan v The Queen; R v Wan [2019] NSWCCA 86
Case: [2019] NSWCCA 86
Decision Date: 29 April 2019

CaseChat Overview and Summary

In the case of Wan v The Queen; R v Wan, the respondent was convicted of various sexual offences against an elderly woman. The matter was appealed on two grounds: first, by the respondent against the conviction, and second, by the Crown against the sentence. The High Court was tasked with determining whether the convictions were unreasonable and if the jury was properly directed to convict based on the video footage of the incidents. The court also had to consider whether the acquittals on a charge of drugging the victim were inconsistent with the guilty verdicts on other charges.

The legal issues before the court included whether the convictions were unreasonable given the jury's direction, and whether the acquittals on a specific charge were inconsistent with other guilty verdicts. The court examined the trial judge's directions to the jury, focusing on the admissibility and reliance on the video footage. It assessed the consistency of the verdicts and whether the acquittal on drugging could coexist with convictions for other offences.

The court found that the convictions were unreasonable due to the trial judge's error in directing the jury that they could convict based solely on the video footage, without considering other evidence. The court also held that the acquittals were consistent with the guilty verdicts. Regarding the sentence, the court held that the original sentence was manifestly inadequate, leading to the exercise of the discretion to intervene. The respondent was re-sentenced to a term that the court deemed appropriate given the gravity of the offences and the impact on the victim.

The final orders included the quashing of the convictions and the setting aside of the original sentence, with the respondent being re-sentenced to a term reflecting the court's assessment of the objective seriousness of the offences and the need for general and specific deterrence.

Orders