Citation: Chung v R [2017] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 24 March 2017
Judges: Beazley P; R A Hulme J; Bellew J
Background
The applicant was convicted by a jury of breaking and entering a dwelling-house and committing a serious indictable offence in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900 (NSW). The serious indictable offence was intimidation, and the aggravating circumstance was that the applicant knew a person was inside the dwelling at the time.
The events arose from a debt dispute. The applicant's partner claimed to be owed approximately $300,000 by the complainant's brother. The applicant attended the complainant's home on 16 September 2012 to pursue that debt. The Crown's case was that the applicant entered without permission, assaulted the complainant by kicking and punching him, and produced a knife during the struggle. The applicant's version was that he entered after hearing an invitation to come in (spoken in Korean) and that it was the complainant who produced the knife.
The applicant was sentenced to six years imprisonment with a non-parole period of three years and six months, against a maximum penalty of 20 years. He sought leave to appeal against both conviction and sentence.
Legal Issues
- Whether the jury's guilty verdict was unreasonable and unsupported by the evidence, given alleged inconsistencies in the complainant's testimony
- Whether the sentencing judge double-counted by treating the offence as committed in the victim's home as an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), when that feature was already embedded in the offence
- Whether the sentencing judge erred in rating the offending as falling in the middle of the range of objective seriousness
- Whether the sentencing judge was obliged to specify a numerical discount for delay in proceedings and the applicant being on bail during that period
- Whether the sentence of six years was manifestly excessive
Decision
Conviction appeal (Ground 1): The Court refused leave to appeal against conviction. Assessing the credibility and reliability of witnesses is a matter for the jury, and the Court applied the well-established principle that it will not lightly disturb such findings. The Court found no basis to conclude that the jury's verdict was unreasonable or unsupported by the evidence.
Double counting (Ground 2A): The Court confirmed that it is not an element of an offence under s 112(2) that the premises broken into belong to the victim. Because the victim's ownership or occupation of the premises is not required to establish the offence, there is no double counting when a sentencing judge also treats the commission of the offence in the victim's home as an aggravating factor under s 21A(2)(eb). This ground was not made out.
Objective seriousness (Ground 2): The Court declined to interfere with the sentencing judge's assessment that the offending fell in the middle of the range of objective seriousness. It reiterated that courts will be slow to disturb such findings, which involve a discretionary judgment. The facts found, including entry with a knife, violence to the complainant in his own home, and the presence of stepchildren, supported the assessment reached below.
Quantification of discount (Ground 3) and manifest excess (Ground 4): On Ground 3, the Court confirmed that a sentencing judge is not obliged to express any discount for bail time or delay as a specific percentage or figure. On Ground 4, the Court found the sentence was not manifestly excessive. It noted that all comparable cases cited by the applicant involved offenders who had pleaded guilty and received substantial discounts; the applicant had proceeded to trial. There is no single correct sentence, and the maximum penalty and standard non-parole period remain important guideposts.
Orders Made
- Leave to appeal against conviction refused
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Under s 112(2) of the Crimes Act 1900 (NSW), it is not an element of the offence that the premises broken into belong to the victim. Accordingly, treating the commission of the offence in the victim's home as an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not constitute double counting.
- The Court of Criminal Appeal confirmed that assessing witness credibility and reliability is the jury's province. Inconsistencies in a complainant's evidence do not, without more, render a verdict unreasonable.
- A sentencing judge retains a broad discretion when assessing the objective seriousness of an offence, and appellate courts will be slow to interfere with that assessment.
- No obligation exists on a sentencing judge to quantify, as a specific figure or percentage, any discount applied to reflect delay in proceedings or time spent on bail.
- In assessing manifest excess, sentencing statistics and comparable cases carry limited weight where those cases involved guilty pleas, and the applicant in the case under review proceeded to trial. There is no single correct sentence, and Parliament's prescribed maximum and standard non-parole period remain important reference points.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)
- Criminal Appeal Act 1912 (NSW)
Cases:
- Ali v R [2010] NSWCCA 35
- Atai v R [2014] NSWCCA 210
- Baines v R [2016] NSWCCA 132
- Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43
- Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188
- Jonson v R [2016] NSWCCA 286
- Markarian v The Queen (2005) 228 CLR 257; [2005] HCA 25
- MLP v R [2014] NSWCCA 183
- Mulato v R [2006] NSWCCA 282
- Palijan v R [2010] NSWCCA 142
- R v Bennett (2014) 245 A Crim R 1; [2014] NSWCCA 197
- R v Johnson [2005] NSWCCA 186
- R v Weismantel [2016] NSWCCA 204
- Smith v R [2013] NSWCCA 209