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Aiga v The King

Aiga v The King

Case [2024] NSWCCA 175 20 September 2024

Appeal

Erroneous Findings of Fact

Objective Seriousness

Moral Culpability

Recklessly Causing Grievous Bodily Harm

Re-sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Aiga v R [2024] NSWCCA 175
Hearing dates: 29 July 2024
Date of orders: 20 September 2024
Decision date: 20 September 2024
Before: N Adams J at [1];
Ierace J at [131];
Sweeney J at [132].
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – recklessly causing grievous bodily harm – ex tempore judgment – whether judge made findings of fact not available on the evidence – whether judge erred in finding the objective seriousness as slightly above mid-range – whether judge erred in declining to find reduced moral culpability on the basis of offender’s alcohol use disorder – whether sentence manifestly excessive – erroneous findings of fact – no error with respect to objective seriousness – no error with respect to moral culpability – re-sentence – no lesser sentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999, ss 21A, 25D(2), 44(2A)
Crimes Act 1900 (NSW), ss 35(2), 61
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6

Cases Cited:
AB v R [2014] NSWCCA 339
Benn v R [2023] NSWCCA 24
Bourke v R (2010) 199 A Crim R 38; [2010] NSWCCA 22
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Buxton v R [2017] NSWCCA 169
Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232
Daniels v R [2016] NSWCCA 35
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DL v R (2018) 265 CLR 215; [2018] HCA 32
Gibson v Regina [2019] NSWCCA 221
Hordern v R [2019] NSWCCA 138
Kelly v R [2016] NSWCCA 246
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Lewin v R [2017] NSWCCA 65
Magro v R [2020] NSWCCA 25
Mulato v R [2006] NSWCCA 282
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Aiga [2023] NSWDC 622
Rv Engert (1995) 84 A Crim R 67
R v MJ [2023] NSWCCA 306
R v O’Donoghue (1988) 34 A Crim R 397
RO v R [2019] NSWCCA 183
Ross v R [2012] NSWCCA 161
Wick v R [2017] NSWCCA 244

Category: Principal judgment
Parties: Filo Aiga (Applicant)
Rex (Respondent)
Representation:
Counsel:
Mr A Chhabra with Mr W Bruffey (Applicant)
Ms E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2022/00162082
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

27 October 2023

Before:

Neilson DCJ

File Number(s):

2022/00162082

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant “glassed” a female bar attendant at a hotel in the early hours of the morning causing a significant wound to her face. The applicant pleaded guilty in the Local Court to one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aiga v The King

Details

AGLC: Aiga v The King [2024] NSWCCA 175
Case: [2024] NSWCCA 175
Decision Date: 20 September 2024

CaseChat Overview and Summary

In the case of Aiga v The King, the appellant was convicted of recklessly causing grievous bodily harm. The appeal before the court was against the sentence imposed by the trial judge. The trial judge had sentenced the appellant to imprisonment, and the appeal focused on whether this sentence was manifestly excessive. The appellant argued that the trial judge made findings of fact that were not supported by the evidence, erred in assessing the objective seriousness of the offence, and made an error in not considering the appellant’s alcohol use disorder in assessing moral culpability.

The court first examined whether the trial judge made findings of fact that were not available on the evidence. The court found that the trial judge’s findings were consistent with the evidence presented, and there was no basis for concluding that the judge had erred in this regard. Next, the court assessed whether the trial judge had erred in determining the objective seriousness of the offence as slightly above mid-range. The court found that the trial judge’s assessment was well within the range of acceptable outcomes, given the circumstances of the offence. The court also considered whether the trial judge erred in not reducing the sentence on the basis of the appellant’s alcohol use disorder. The court determined that the trial judge had appropriately considered this factor and found no error in the assessment of moral culpability.

Ultimately, the court found that the sentence imposed by the trial judge was not manifestly excessive, and there was no error in the findings of fact, the assessment of objective seriousness, or the consideration of moral culpability. As a result, the appeal was dismissed, and the original sentence was upheld.

Orders