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Yeung v R

Yeung v R

Case [2018] NSWCCA 52 28 March 2018

Sentencing

Accumulation of Sentences

Special Circumstances

Parity

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Yeung v R [2018] NSWCCA 52
Hearing dates: 21 February 2018
Decision date: 28 March 2018
Before: Hoeben CJ at CL at [1]
Simpson JA at [2]
McCallum J at [3]
Decision:
Leave to appeal granted; appeal dismissed

Catchwords:
CRIME – sentencing – requirement to assess the objective seriousness of the offence – distinguished from obsolete practice of fixing the offence on a point along a line by reference to a hypothetical mid-range offence – whether, reading the sentencing judgment fairly as a whole, there was a failure to make the required assessment

CRIME – sentencing – accumulation – where offender subject to another sentence at the time sentence is passed – whether s 55(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) creates a presumption in favour of concurrency

CRIME – sentencing – whether finding of special circumstances reflected in structure of sentence
CRIME – sentencing – parity – whether applicant has justifiable sense of grievance – disparity explained by different charges and differently structured sentences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 55(1)
Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24(2), 25(2), 25A(1)
Cases Cited: Badans v R [2012] NSWCCA 97
Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
Lawson v R [2012] NSWCCA 56
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; (2011) 212 A Crim R 254; [2011] HCA 39
R v Cage [2006] NSWCCA 304
R v Van Ryn [2016] NSWCCA 1
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Category: Principal judgment
Parties: Gilbert Wai Kit Yeung (applicant)
Regina (respondent)
Representation:
Counsel:
M Ramage QC (applicant)
E Balodis (Crown/respondent)
Solicitors:
Chess Legal Pty Ltd (applicant)
Office of the Director of Public Prosecutions (Crown/respondent)

File Number(s): 2015/193427
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

14 October 2016

Before:

King SC DCJ

File Number(s):

2015/193427

Judgment

HOEBEN CJ AT CL: I agree with McCallum J and the orders which she proposes.
SIMPSON JA: I agree with McCallum J and the orders which she proposes.
McCALLUM J: Gilbert Yeung seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to an offence of knowingly taking part in the supply of a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The quantity of the drug involved was 282 grams. A further offence of knowingly taking part in the supply of a quantity of 279.29 grams of the same drug was taken into account on a Form 1.
The applicant had pleaded…

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 Yeung v R

Details

AGLC: Yeung v R [2018] NSWCCA 52
Case: [2018] NSWCCA 52
Decision Date: 28 March 2018

CaseChat Overview and Summary

In the case of Yeung v R, the appellant was sentenced in the Supreme Court of New South Wales for multiple offences, with the appeal concerning the sentencing process. The primary issues were whether the trial judge correctly assessed the objective seriousness of the offences, whether there was a presumption in favour of concurrency due to the offender being subject to another sentence at the time, and if the sentence structure reflected special circumstances. Additionally, the appeal questioned whether the disparity in sentences between the applicant and co-offenders was justified.

The court was required to determine whether the trial judge correctly assessed the objective seriousness of the offences, a task which involves a holistic assessment rather than the outdated practice of aligning the offence with a hypothetical mid-range offence. The court also had to consider the presumption in favour of concurrency created by section 55(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) when an offender is subject to another sentence at the time of passing the new sentence. Furthermore, the court needed to examine if the sentence structure appropriately reflected any special circumstances and whether the disparity between the applicant’s sentence and those of co-offenders was justified by the nature of the charges and the sentence structure.

The Supreme Court found that the trial judge did not fail to make the required assessment of the objective seriousness of the offence, as the sentencing judgment, when read as a whole, demonstrated a proper consideration of the relevant factors. Regarding the presumption of concurrency, the court held that section 55(1) does not create an irrebuttable presumption but rather a presumption that can be rebutted if there are sufficient reasons to impose consecutive sentences. The court also determined that the sentence did reflect special circumstances, as evidenced by the judge’s comments. Finally, the court found that the disparity in sentences was justified by the different charges and the structure of the sentences imposed on the co-offenders.

The final orders of the court were to dismiss the appeal, upholding the original sentencing and the trial judge's discretion in assessing the objective seriousness of the offences, the presumption of concurrency, the reflection of special circumstances in the sentence structure, and the justification for the disparity in sentences.

Orders