Chung v R [2017] NSWCCA 48

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chung v R [2017] NSWCCA 48 Hearing dates: 31 October 2016 Decision date: 24 March 2017 Before: Beazley P; R A Hulme J; Bellew J Decision: (1) Refuse leave to appeal against conviction.

(2) Grant leave to appeal against sentence.

(3) Dismiss the appeal against sentence. Catchwords: CRIMINAL LAW – application for leave to appeal against conviction – appeal on ground that verdict of the jury was unreasonable and cannot be supported having regard to the evidence – applicant convicted under Crimes Act 1900 (NSW), s 112(2) of breaking and entering a dwelling-house and committing a serious indictable offence in circumstances of aggravation – whether it had been established that the applicant had broken and entered – inconsistencies in complainant's evidence – whether complainant was an unreliable witness whose evidence should not have been accepted – whether leave to appeal should be granted

CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred in finding that the offending was aggravated by being committed in the home of the victim under Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb) – relationship between Crimes Act 1900 (NSW), s 112(2) and Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb) – whether sentencing judge double counted fact that offending was committed in the victim's home – whether it is an element of s 112(2) that premises which are the subject of offending are those of the victim

CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred in finding that offending was in the middle of the range of objective seriousness – whether factual findings support conclusion reached by sentencing judge – sentencing judge found that applicant broke into premises in possession of a knife, kicked the victim in the stomach, produced the knife and assaulted the victim – when finding of objective seriousness of particular offending by sentencing judge will be set aside