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You, Jae Bok v R

You, Jae Bok v R

Case [2020] NSWCCA 71 15 April 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: You, Jae Bok v R [2020] NSWCCA 71
Hearing dates: 20 March 2020
Date of orders: 15 April 2020
Decision date: 15 April 2020
Before: Basten JA at [1];
Rothman J at [24];
Cavanagh J at [33]
Decision:
(1) Grant leave to the applicant to appeal from the sentences imposed on him in the District Court on 14 June 2019.
(2) With respect to the sentence for the offence under s 53 of the Crimes Act of driving furiously causing bodily harm, delete from the record the statement:
“The offender is to be released to parole on 13 January 2020.”
(3) Otherwise dismiss the appeal.

Catchwords:
CRIME — appeals — appeal against sentence — dangerous driving occasioning death — whether sentencing judge erred in application of the guideline judgment — R v Whyte — use of remarks made in course of hearing to attempt to establish error — Crimes Act 1900 (NSW), s 52A

CRIME — appeals — appeal against sentence — manifest excess — whether sentencing judge failed to have regard to applicant's subjective circumstances

CRIME — appeals — appeal against sentence — principle in R v De Simoni — Crimes Act 1900 (NSW), s 52A
CRIME — appeals — appeal against sentence — clerical error in record of sentence entered for offence under Crimes Act 1900 (NSW), s 53 — record corrected
Legislation Cited: Crimes Act 1900 (NSW), ss 52A, 53
Crimes (Administration of Sentences) Act 1999 (NSW), ss 126, 158; Div 2
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 42A, 50
Parole Legislation Amendment Act 2017 (NSW), Sch 3.2[1]
Cases Cited: Aitken v R [2014] NSWCCA 201
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hughes v R [2018] NSWCCA 2
Hughes v The Queen [2008] NSWCCA 48; 185 A Crim R 155
Legge v R [2007] NSWCCA 244
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Karacic [2001] NSWCCA 12; 121 A Crim R 7
R v Kennedy [2000] NSWCCA 527
R v Nguyen [2008] NSWCCA 113
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Van Hong Pham [2005] NSWCCA 94
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Woodward v R [2014] NSWCCA 205
Category: Principal judgment
Parties: Jae Bok You (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Stratton SC with J Park (Applicant)
D Patch (Respondent)
Solicitors:
CSY Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/394032
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 June 2019

Before:

Turnbull SC DCJ

File Number(s):

2017/394032

Judgment

BASTEN JA:

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 You, Jae Bok v R

Details

AGLC: You, Jae Bok v R [2020] NSWCCA 71
Case: [2020] NSWCCA 71
Decision Date: 15 April 2020

CaseChat Overview and Summary

In the case of You, Jae Bok v R, the appellant, You Jae Bok, was convicted of dangerous driving occasioning death under section 52A of the Crimes Act 1900 (NSW). The appeal was against the sentence imposed, arguing various grounds of error including the application of guideline judgments and manifest excess. The High Court of Australia was the tribunal hearing the case. The respondent, the Crown, argued in defence of the sentence and sought to maintain it as imposed by the sentencing judge.
The primary legal issue before the court was whether the sentencing judge had erred in applying the guideline judgment from R v Whyte. The appellant also contended that the sentencing judge failed to adequately consider the appellant's subjective circumstances and that the sentence was manifestly excessive. Additionally, the appellant sought correction of a clerical error in the record of the sentence.
The court assessed the arguments, finding that the sentencing judge had not erred in applying the guideline judgment from R v Whyte. The court held that the remarks made during the hearing could not be used to establish error. Regarding the manifest excess argument, the court determined that the sentencing judge had properly considered the appellant's circumstances and that the sentence was not manifestly excessive. Finally, the court found that there was a clerical error in the record of sentence and ordered it to be corrected accordingly. The appeal was dismissed, and the original sentence was upheld with the correction of the clerical error.

Orders