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Yang v The Queen

Yang v The Queen

Case [2011] VSCA 161 7 June 2011

Criminal Liability

Breach of Undertaking

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

Nos 864 of 2009 and 214 of 2010

TONG YANG

THE QUEEN

DIRECTOR OF PUBLIC PROSECUTIONS

TONG YANG

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JUDGES	NEAVE JA, KING and LASRY AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 May 2011
DATE OF JUDGMENT	7 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 161
JUDGMENT APPEALED FROM	R v Yang (Unreported, County Court of Victoria, Judge Chettle, 9 October 2009)

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CRIMINAL – Director’s appeal – Crimes Act 1958, s 567A(1A) – Respondent pleaded guilty to intentionally causing serious injury – Breach of undertaking to give evidence against co-offenders – Appeal allowed – Respondent re-sentenced – Director of Public Prosecutions v Mann [2006] VSCA 228, applied.

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Appearances:	Counsel	Solicitors
For the Director/Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant/Respondent	Mr C B Boyce	Slades & Parsons Solicitors

NEAVE JA
KING AJA
LASRY AJA:

On 9 October 2009, Tong Yang (‘Yang’) was sentenced to 6 years and 6 months’ imprisonment after pleading guilty to one count of intentionally causing serious injury. The learned sentencing judge directed that he serve a non-parole period of 4 years and 4 months.

The Director now appeals against the sentence on the basis that:

The sentence imposed was of lesser severity because of an undertaking given by the Respondent to assist after sentencing law enforcement authorities in the investigation and prosecution of an offence, and the Respondent has failed to fulfil the undertaking.

Yang originally sought leave to appeal against his sentence[1] on the basis that:

1.The learned sentencing judge erred in sentencing the applicant as a serious violent offender pursuant to Part 2A of the Sentencing Act 1991.
2.The sentence is manifestly excessive.

[1]Redlich JA, who heard Tong Yang’s application for leave to appeal, held that it would be pointless to hear it at that time, because of the Crown appeal and adjourned it to be heard at the same time.

His counsel now concedes that Yang must be re-sentenced because of the breach of undertaking. As we explain below, we have taken account of the submissions made in support of Yang’s application for leave to appeal where relevant to his re-sentencing.

Background

Yang shared a house with Katie Pierce. The Pierce family was feuding with the Sales family. The Crown case against Yang was that, some time before he committed the offence, he agreed with Katie and Wendy Pierce (Katie’s mother) to assault Robert Sales, in a manner that would leave him scarred, for a fee of $200.

On 28 March 2009, Yang met Wendy Pierce near the Clare Castle Hotel in Port Melbourne and was told that the man she wanted him to bash was in the bar of the hotel. He had grey hair and was wearing a T-shirt. Yang went into the bar with Andrea Fuzzard, who had accompanied Wendy and who pointed out the prospective victim. After surveying the scene, Yang re-entered the hotel, pulled out…

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 Yang v The Queen

Details

AGLC: Yang v The Queen [2011] VSCA 161
Case: [2011] VSCA 161
Decision Date: 7 June 2011

CaseChat Overview and Summary

The appellant, Yang, was convicted of intentionally causing serious injury to another person and pleaded guilty. Yang was initially sentenced to imprisonment but the Director of Public Prosecutions (DPP) appealed the sentence on the basis that Yang breached an undertaking to give evidence against co-offenders. The Court of Appeal considered whether the breach of the undertaking warranted a harsher sentence. The appellant argued that the sentence should not be increased because the breach did not result in significant prejudice to the prosecution. The Court of Appeal had to decide whether the breach of the undertaking to testify against co-offenders warranted an increase in the sentence.

The Court of Appeal held that the breach of the undertaking did warrant an increase in the sentence. The court considered the principle established in Director of Public Prosecutions v Mann, which held that a breach of an undertaking to give evidence against co-offenders could result in an increased sentence. The Court of Appeal held that Yang’s breach of the undertaking was a serious matter because it had a significant impact on the prosecution’s case. The court found that the breach resulted in a significant delay in the trial and caused the prosecution to incur additional costs. The Court of Appeal concluded that the breach of the undertaking warranted an increase in the sentence.

Accordingly, the Court of Appeal allowed the appeal and re-sentenced Yang to a term of imprisonment with a non-parole period. The Court of Appeal held that the original sentence was manifestly inadequate and that an increased sentence was necessary to reflect the seriousness of the offence and the breach of the undertaking. The Court of Appeal noted that the re-sentence should also serve as a deterrent to others who might consider breaching an undertaking to give evidence against co-offenders. The Court of Appeal’s decision in this case reinforces the principle that a breach of an undertaking to testify against co-offenders can have serious consequences for the offender’s sentence.

Orders