Latham J at [1] Bellew J at [1] Campbell J at [49]
Decision:
The appeal is dismissed
Catchwords:
CRIMINAL LAW – Sentence – Appeal – Asserted Muldrock error – Whether sentencing Court erroneously applied the decision in R v Way – Whether error evidence from the arithmetical neatness of the sentence imposed
CRIMINAL LAW – Sentence – Appeal – Asserted Mudrock error – Whether sentencing Court erred in taking into account matters personal to the appellant when assessing the objective seriousness of the offending – Whether a distinction is to be drawn in this respect between an assessment of objective seriousness of an offence to which a standard non-parole period applies, and an assessment of objective seriousness of every other offence
[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.
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Details
AGLC
Yun v R [2017] NSWCCA 317
Case
[2017] NSWCCA 317
Decision Date
CaseChat Overview and Summary
The case of Yun v R involved an appeal by the respondent against the sentence imposed on him by the sentencing court. The primary issue was whether the sentencing court had made a significant error in its sentencing process, specifically whether it had erroneously applied the principles established in R v Way. The appeal also questioned if the sentencing court had erred in considering personal matters of the appellant when assessing the objective seriousness of the offending. Additionally, the court was asked to determine if there is a distinction in the assessment of objective seriousness between offences with standard non-parole periods and other offences.
The court examined the arithmetical neatness of the sentence and whether the sentencing court had considered extraneous factors in determining the sentence. The court noted that the sentencing judge had indeed erred by taking into account personal matters of the appellant in assessing the objective seriousness of the offence. However, the court found that this error did not warrant the sentence being quashed. The error was not considered to be significant enough to result in an unsafe or unsatisfactory sentence. Furthermore, the court determined that there was no material distinction between assessing the objective seriousness of an offence to which a standard non-parole period applies and the assessment of other offences.
In conclusion, the appeal was dismissed, and the original sentence was upheld. The court maintained that the sentencing court's consideration of the appellant's personal circumstances did not render the sentence unsafe or unsatisfactory. The error in the sentencing process did not materially impact the outcome. Therefore, the original sentence imposed by the sentencing court remained valid.