Yun v R [2008] NSWCCA 114

Yun v R [2008] NSWCCA 114

The sentence had to be quashed because the sentencing judge erred in assessing the offence as above the midrange of objective seriousness by relying only on the applicant's intention to kill and by failing to consider other circumstances of the offence. The judge also erred by using the 20-year standard non-parole period as the starting point, without separately reasoning to an appropriate head sentence or considering the balance between the head sentence and non-parole period. On resentencing, the offence was in the middle of the range, but significant mitigating factors justified a head sentence of 24 years with a non-parole period of 18 years.

Jurisdiction
Australia
Judgment Date
02 June 2008
Procedural Posture
Sentence Appeal Murder / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted and appeal allowed; sentence quashed and applicant resentenced.
Legal Topics
['murder' 'standard Minimum Non Parole Period' 'objective Seriousness' 'intention to Kill' 'sentencing Discretion']
['criminal Law' 'sentencing'] ['murder' 'standard Minimum Non Parole Period' 'objective Seriousness' 'intention to Kill' 'sentencing Discretion']

Case Brief

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Procedural Posture

Sentence Appeal Murder / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in assessing the offence as above the midrange of objective seriousness solely by reference to the applicant's intention to kill." 'Whether the sentencing judge failed to take into account lack of planning, lack of premeditation and the fact that the offence was not part of organised criminal activity.' 'Whether the sentencing judge erred by using the standard minimum non-parole period as the starting point for fixing the sentence.' 'Whether a different and less severe sentence was warranted.']

Ratio Decidendi

The sentence had to be quashed because the sentencing judge erred in assessing the offence as above the midrange of objective seriousness by relying only on the applicant's intention to kill and by failing to consider other circumstances of the offence. The judge also erred by using the 20-year standard non-parole period as the starting point, without separately reasoning to an appropriate head sentence or considering the balance between the head sentence and non-parole period. On resentencing, the offence was in the middle of the range, but significant mitigating factors justified a head sentence of 24 years with a non-parole period of 18 years.

Court Disposition

Leave to appeal granted and appeal allowed; sentence quashed and applicant resentenced.

Orders

  • ['Leave to appeal granted and appeal allowed.' 'The sentence imposed by Newman AJ on 11 April 2006 is quashed.' 'In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 18 years commencing 9 May 2003 and expiring on 8 May 2021 with a balance of term of 6 years expiring on 8 May 2027.']