SUN, Yee Sing v Regina [2011] NSWCCA 99

SUN, Yee Sing v Regina [2011] NSWCCA 99

The sentencing judge proceeded on the wrong factual basis by stating that the Applicant did not express any remorse when the evidence showed expressions of remorse to the Probation and Parole Service, to Dr Klug, and in a letter. The prerequisites in s 21A(3)(i) were satisfied, and affidavit evidence on appeal supported acceptance of remorse. Having found error, the Court held that a lesser sentence should have been imposed because, although the offence was serious and required imprisonment, the Applicant had no prior convictions, a highly unusual and grossly irrational motivation, a limited likelihood of reoffending, reduced need for specific and general deterrence, special circumstances...

Jurisdiction
Australia
Judgment Date
28 April 2011
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence set aside; Applicant resentenced to a shorter non-parole period and balance of term.
Legal Topics
['appeal Against Sentence' 'remorse as Mitigating Factor' 'threatening to Inflict Actual Bodily Harm With Intent to Have Sexual Intercourse' 'objective Seriousness' 'manifest Excess' 'special Circumstances' 'post Sentence Evidence']
['criminal Law' 'sentencing'] ['appeal Against Sentence' 'remorse as Mitigating Factor' 'threatening to Inflict Actual Bodily Harm With Intent to Have Sexual Intercourse' 'objective Seriousness' 'manifest Excess' 'special Circumstances' 'post Sentence Evidence']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding that the Applicant did not express remorse for his offending.' 'Whether the sentence imposed was manifestly excessive.' 'Whether, after identifying error, some other sentence was warranted in law and should have been passed.' 'What weight should be given to out-of-court and affidavit evidence of remorse.' "Whether the objective seriousness of the offence was affected by the Applicant's unusual and irrational motive and by the court not being satisfied that he intended to inflict actual bodily harm."]

Ratio Decidendi

The sentencing judge proceeded on the wrong factual basis by stating that the Applicant did not express any remorse when the evidence showed expressions of remorse to the Probation and Parole Service, to Dr Klug, and in a letter. The prerequisites in s 21A(3)(i) were satisfied, and affidavit evidence on appeal supported acceptance of remorse. Having found error, the Court held that a lesser sentence should have been imposed because, although the offence was serious and required imprisonment, the Applicant had no prior convictions, a highly unusual and grossly irrational motivation, a limited likelihood of reoffending, reduced need for specific and general deterrence, special circumstances...

Court Disposition

Leave to appeal granted; appeal allowed; sentence set aside; Applicant resentenced to a shorter non-parole period and balance of term.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Set aside the sentence imposed on the Applicant in the court below.' 'In lieu thereof, order that he be sentenced to a non-parole period commencing 11 August 2008 and expiring 25 February 2011, with a balance of term expiring 11 November 2012.']