Xue v R

Case [2017] NSWCCA 137 21 June 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Xue v R [2017] NSWCCA 137
Hearing dates: 24 May 2017
Date of orders: 21 June 2017
Decision date: 21 June 2017
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [6]
McCallum J at [58]
Decision:
Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW – sentence appeal – one count of wound with intent to cause grievous bodily harm – domestic violence – husband attacked wife with knife – sentence of imprisonment for 6 years with a non-parole period of 4 years – whether sentence manifestly excessive – findings as to objective seriousness open – failure to establish that sentence was unreasonable or plainly unjust – leave to appeal against sentence refused.
Legislation Cited: Crimes Act 1900 (NSW) – s 33(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 3A
Cases Cited: Adzioski v R [2013] NSWCCA 69
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Graham v Regina [2009] NSWCCA 212
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mun v R [2015] NSWCCA 234
McGeown v R (2014) 247 A Crim R 206; [2014] NSWCCA 314
Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
R v Wei Zheng Wong [2010] NSWCCA 160
TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146
Yang v R [2012] NSWCCA 49
Category: Principal judgment
Parties: Xinglong Xue – Applicant
Regina – Respondent Crown
Representation:
Counsel:
S Kluss – Applicant
S Dowling SC – Respondent Crown
Solicitors:
Bo Yu Chi – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/213755
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

7 July 2016

Before:

Buscombe DCJ

File Number(s):

2014/213755

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Hoeben CJ at CL in draft. I agree with the orders proposed by his Honour and subject to one qualification, with his Honour’s reasons.
Hoeben CJ at CL has stated (at [46]) that in considering whether a sentence is manifestly excessive, approaching the case from a hypothetical start point diverts attention from the proper question, namely, whether the sentence actually imposed was unreasonable. His Honour has referred to Graham v R [2009] NSWCCA 212 at [40] which was followed in Adzioski v R [2013] NSWCCA 69 at [72] and Yang v R [2012] NSWCCA 49 at [63]. Graham was a case where the sentencing judge gave a discount of 50% for a plea and assistance to authorities. In that case Hoeben CJ at CL stated (at [43]), the application of such a generous discount inevitably raises the issue of the extent to which a sentence can be…

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 Xue v R

Details

AGLC: Xue v R [2017] NSWCCA 137
Case: [2017] NSWCCA 137
Decision Date: 21 June 2017

CaseChat Overview and Summary

The appellant, Xue, appealed against the sentence imposed by the Supreme Court of Victoria for one count of wound with intent to cause grievous bodily harm. The incident arose from a domestic violence situation where Xue attacked his wife with a knife, resulting in severe injuries. The court sentenced Xue to six years' imprisonment with a non-parole period of four years. The key legal issues before the court were whether the sentence was manifestly excessive, and whether the findings as to the objective seriousness of the crime were open to challenge. The court also needed to determine if Xue had demonstrated that the sentence was unreasonable or plainly unjust.

In considering these issues, the court emphasised the need to balance the principles of punishment, deterrence, and rehabilitation in sentencing. The court noted that the attack was premeditated and involved significant violence, and that domestic violence carries a high degree of community condemnation. It was held that the sentence was within the range of appropriate penalties for such an offence. The findings regarding the objective seriousness of the crime were considered to be open, and the appellant had not successfully shown that the sentence was unreasonable or plainly unjust. As a result, the appeal against sentence was dismissed, and leave to appeal was refused.

The court’s decision was grounded in a thorough analysis of the circumstances of the offence and the principles of sentencing. The appellant's background and the impact of the crime on the victim were also considered. The court concluded that the sentence imposed was neither manifestly excessive nor unjust, and that the sentence reflected the appropriate balance of sentencing principles. The final orders of the court were that the appeal against sentence was dismissed and leave to appeal against sentence was refused.

Orders