LEUNG, Simon Yuk v R [2014] NSWCCA 44

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: LEUNG, Simon Yuk v R [2014] NSWCCA 44 Hearing dates: 1 April 2014 Decision date: 07 April 2014 Before: Hoeben CJ at CL at [1]; Adams J at [2]; Hall J at [3] Decision: (1) Leave to appeal against the sentences imposed by the District Court on 26 July 2013 be granted. (2) Appeal allowed. (3) The applicant be re-sentenced as follows: (i) In respect of the offence of reckless wounding contrary to s 35(4) Crimes Act 1900, the applicant is re-sentenced to a term of imprisonment comprising a non-parole period equivalent to the period of imprisonment served by the applicant, being a period of 8 months 13 days commencing on 26 July 2013 and to expire on 7 April 2014 with a balance of term of 3 months and 18 days to commence on 8 April 2013 and to expire on 25 July 2014. (ii) In respect of the offence of possess prohibited weapon contrary to s 7(1) Weapons Prohibition Act 1998, the applicant be directed pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 to enter into a good behaviour bond for a period of 1 year from 7 April 2014. Catchwords: CRIMINAL LAW - sentence appeal - application for leave - one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900 - one count of possess a prohibited weapon contrary to s 7(1) of the Weapons Prohibitions Act 1998 - sentence in relation to the prohibited weapons offence was manifestly excessive - sentencing judge erred in concluding that the only appropriate sentence in relation to the prohibited weapons offence was one of imprisonment - sentencing judge erred in failing to take into account the applicant's psychiatric condition when assessing objective seriousness of the offence and the impact of a custodial sentence on the applicant - leave granted - appeal allowed - sentence quashed and set aside - applicant re-sentenced Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Weapons Prohibition Act 1998 Cases Cited: Pearce v R (1998) 194 CLR 610 R v George (2004) 149 A Crim R 38 R v Hemsley [2004] NSWCCA 228 R v Israil [2002] NSWCCA 255 R v Zamagias [2002] NSWCCA 17 SGJ v R; KU v R (2009] NSWCCA 258 Category: Principal judgment Parties: Simon Yuk Leung (Applicant) Regina (Respondent) Representation: Counsel: H Dhanji SC; M Johnston (Applicant) S Herbert (Respondent) Solicitors: Watsons Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/368216 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-07-26 00:00:00 Before: Sorby DCJ File Number(s): 2012/368216