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Yat v The King

Yat v The King

Case [2024] VSCA 93 13 May 2024

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SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0243
DUNG YAT	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2024
DATE OF ORDERS:	1 May 2024
DATE OF REASONS:	13 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 93
JUDGMENT APPEALED FROM:	[2023] VCC 1638 (Judge Chambers)

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CRIMINAL LAW – Appeal – Sentence – Offences involving assaults of custodial officers – Whether sentence manifestly excessive – Serious offending – Youthful offender – Where significant delay between offending and charges – Where offender had spent nearly three years in solitary confinement by time of sentence – Significant weight to be given to burdensome conditions of imprisonment – Appeal allowed – Applicant re-sentenced.

Sentencing Act 1991 ss 11(2), 11(3), 16(3).

R v Stevens [2009] VSCA 81; R v Males [2007] VSCA 302; R v Liddy [No 2] [2002] SASC 306; R v Lian [2023] SASCA 122; Packard (a pseudonym) v The Queen [2022] VSCA 128; R v AB [No 2] [2000] NSWCCA 467; Western Australia v O’Kane [2011] WASCA 24; Milenkovski v Western Australia [2014] WASCA 48; R v Brady [2005] SASC 277; Azzopardi v The Queen (2011) [2011] VSCA 372, discussed. Bekink v The Queen [1999] WASCA 160; R v Faure [2005] VSCA 91; R v Mills [1998] 4 VR 235; Tones v The Queen [2017] VSCA 118; Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 102, applied.

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Counsel
Applicant:		Mr C Mandy SC with Ms K Ballard
Respondent:		Ms D I Piekusis KC
Solicitors
Applicant:	Slades & Parsons Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
BOYCE JA:

Dung Yat pleaded guilty to three offences involving the assault of three corrections officers while he was serving a sentence for other offending. He was sentenced as follows:[1]
[1]R v Ahmed [2023] VCC 1638 (Judge Chambers) (‘Reasons’).

Charge on Indictment

Offence

Maximum Penalty

Sentence

Cumulation

1 Assault emergency worker on duty[2] 5 years 10 months 2 months

2 Causing injury recklessly[3] 5 years 11 months Base

3 Assault emergency worker on duty[4] 5 years 6 months 1 month

Total Effective Sentence: 14 months’ imprisonment

Non-Parole Period: 8 months

Pre-sentence Detention Declared: n/a

Section 6AAA Statement:
Total Effective Sentence 18 months

Non Parole-Period 12 months

[2]Contrary to s 31(1)(b) of the Crimes Act 1958.
[3]Contrary to s 18 of the Crimes Act 1958.
[4]Contrary to s 31(1)(b) of the Crimes Act 1958.

Yat sought leave to appeal against that sentence, on the sole proposed ground that it was manifestly excessive. A significant aspect of his appeal turned on the delay between the offending and the filing of the charges. The offending occurred in June 2020; the charges were filed in March 2022, some 21 months later. No explanation for the delay was given by the prosecution. Yat was sentenced in July 2022…

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 Yat v The King

Details

AGLC: Yat v The King [2024] VSCA 93
Case: [2024] VSCA 93
Decision Date: 13 May 2024

CaseChat Overview and Summary

Yat, an appellant, appealed against his conviction and sentence for multiple offences involving assaults on custodial officers, before the South Australian Court of Appeal. The primary issue was whether the sentence imposed by the primary judge was manifestly excessive. Yat was a youthful offender who had committed these serious offences while in custody. A significant delay had passed between the commission of the offences and the imposition of charges. By the time of sentencing, Yat had already spent nearly three years in solitary confinement. The court was required to consider the conditions of Yat's imprisonment and whether they should be given significant weight in the sentencing process.

The South Australian Court of Appeal examined the principles of sentencing under the Sentencing Act 1991 and various precedents including R v Stevens, R v Males, R v Liddy, R v Lian, Packard, R v AB, Western Australia v O’Kane, Milenkovski, R v Brady, and Azzopardi. The court noted that the Sentencing Act required the court to consider the offender's age, the delay in prosecution, and the conditions of pre-sentence custody. The court also referred to Bekink, R v Faure, R v Mills, Tones, Worboyes, and R v Verdins in assessing the appropriate weight to be given to the pre-sentence custody conditions. The court concluded that the sentence imposed was manifestly excessive given these factors.

The Court of Appeal allowed the appeal, quashed the sentence, and ordered that Yat be re-sentenced. The court found that the primary judge had not given sufficient weight to the conditions of Yat's pre-sentence custody and the delay in bringing the matter to trial. The court held that these factors warranted a reduction in the sentence imposed. The Court did not specify the new sentence but directed that it be re-considered by the sentencing judge with the appropriate weight given to the mitigating factors identified.

Orders