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Court of Criminal Appeal 15 May 2002

Regina v Quach

[2002] NSWCCA 173

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL LEAVE TO APPEAL AGAINST SENTENCE OFFENCE OBJECTIVELY SERIOUS CIRCUMSTANCES SERIOUS ERROR IN SENTENCING

Citation: Regina v Quach [2002] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 15 May 2002
Judge(s): O'Keefe J; Smart AJ

Background

The applicant, a Vietnamese-born computer consultant with no prior criminal history, was convicted by a jury in the District Court on a charge of causing grievous bodily harm to his wife with intent to murder her, contrary to s 27 of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment. The attack occurred on 25 July 2000 at the family home, where the applicant struck his wife repeatedly with a bottle, fractured her skull, bound and gagged her, and held her captive for several hours before an ambulance was eventually called.

The sentencing judge in the District Court imposed a nine-year term of imprisonment with a five-year non-parole period, finding special circumstances. The applicant sought leave to appeal that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge failed to take the applicant's prior good character into account as a mitigating factor
  • Whether the sentencing judge failed to give adequate consideration to the applicant's expressed contrition
  • Whether the sentencing judge failed to account for a depressive illness the applicant was said to be suffering at the time of the offence
  • Whether the sentence imposed was manifestly excessive

Decision

On the first ground, the Court found that the sentencing judge had in fact referred to the applicant's good character in the remarks on sentence, but had erred by not giving it proper weight as a mitigating factor. However, having identified that error, the Court went on to consider whether the sentence actually imposed was nevertheless within an appropriate range.

On the second and third grounds, concerning contrition and depressive illness, the Court found no sufficient basis to disturb the sentence. The Court indicated that even if some substance existed in those grounds, it would not have altered the outcome, given the gravity of the offence.

On the question of manifest excess, the Court examined sentencing statistics drawn from 19 comparable cases under s 27 of the Crimes Act. That analysis revealed that a nine-year full term sat towards the lower end of the range, with 86 per cent of full terms falling between 8 and 14 years, and only 16 per cent falling below 9 years. The Court concluded the sentence was not manifestly excessive when measured against both the statistical range and the objective seriousness of the offence, even after accounting for the applicant's personal circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court's failure to give proper weight to an offender's prior good character may constitute an identifiable error, yet still not warrant a reduction in sentence if the penalty imposed falls within an appropriate range for the offence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that good character carries diminished mitigating force where the circumstances of the offending are described as "quite outrageous" and the conviction involves an actual intention to kill.
  • Sentencing statistics for comparable offences under s 27 of the Crimes Act 1900 showed that custodial sentences were imposed in every case reviewed, with the substantial majority of full terms falling between 8 and 14 years.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must form the opinion that some other sentence should have been passed before it can intervene; absent that opinion, dismissal of the appeal is required regardless of any identified error in the sentencing judge's reasoning.
  • Where multiple grounds of appeal are raised against sentence but none, individually or together, demonstrates that a less severe penalty was warranted in law, the sentence will stand.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Crimes Act 1900 (NSW), ss 27, 6

Cases Cited:
- Ryan v The Queen [2001] HCA 21
- Regina v Kanj [2000] NSWCCA 408
- Regina v Green [2001] NSWCCA 258
- Regina v Glen (NSW Court of Criminal Appeal, unreported, 19 December 1994)
- Regina v Kotevski (NSW Court of Criminal Appeal, unreported, 3 April 1998)
- Regina v Oinonen [1999] NSWCCA 310