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Akoka v The Queen

Akoka v The Queen

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Case Copied 25 August 2017 55 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0036

NATHAN AKOKA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, KYROU and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2017
DATE OF JUDGMENT:	25 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 214
JUDGMENT APPEALED FROM:	DPP v Akoka (Unreported, County Court of Victoria, Judge Chettle, 10 February 2017)

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CRIMINAL LAW – Appeal – Sentence – Robbery, aggravated burglary, trafficking drug of dependence – 12 months spent in residential rehabilitation facility prior to sentence – Evidence of rehabilitation – Plea of guilty – Total effective sentence six years’ imprisonment – Non-parole period three years – Whether manifestly excessive – Mercy, how it may inform sentencing range – Whether error in approach to discretion to exercise mercy – Whether mercy conflated with principles in Boulton v The Queen (2014) 46 VR 308 – No error disclosed – R v Osenkowski (1982) 30 SASR 212; El Achkar v The Queen [2016] VSCA 209 considered.

CRIMINAL LAW – Appeal – Sentence – Whether failure to moderate sentence on account of time spent in residential rehabilitation facility – Appeal allowed – Resentenced to total effective sentence five years’ imprisonment – Non-parole period two years and six months – R v Delaney (2003) 59 NSWLR 1; Renshaw v The Queen [2012] NSWCCA 91; R v Eyles (No 3) [2017] ACTSC 1 followed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Furstenberg Law
For the Crown	Mr B Kissane QC	J Cain, Solicitor for Public Prosecutions

WARREN CJ
KYROU JA

REDLICH JA:

Introduction and summary

The applicant pleaded guilty to 10 charges on two indictments. Following a plea hearing on 7 and 10 February 2017, he was sentenced by a County Court judge on 10 February 2017 as follows:[1]
[1]DPP v Akoka (Unreported, County Court of Victoria, Judge Chettle) 10 February 2017 (‘Sentencing remarks’).

Indictment F12535371

Offence

Maximum

Sentence

Cumulation

1
Armed robbery

Crimes Act 1958 s 75A(1)
25 years 18 months Base

2

Theft

Crimes Act 1958 s 74(1)
10 years 12 months 6 months

3
Make threat to kill

Crimes Act 1958 s 20
10 years 6 months -

4
Obtain financial advantage by deception

Crimes Act 1958 s 82(1)
10 years 7 days -

Total Effective Sentence Indictment F12535371: 2 years

Other relevant orders: 12 months of the sentence on this indictment be served cumulatively upon the sentence on indictment G10077355.1.

Indictment F12535371	Offence	Maximum	Sentence	Cumulation
1	Armed robbery Crimes Act 1958 s 75A(1)	25 years	18 months	Base
2	Theft Crimes Act 1958 s 74(1)	10 years	12 months	6 months
3	Make threat to kill Crimes Act 1958 s 20	10 years	6 months	-
4	Obtain financial advantage by deception Crimes Act 1958 s 82(1)	10 years	7 days	-
Total Effective Sentence Indictment F12535371:	2 years
Other relevant orders: 12 months of the sentence on this indictment be served cumulatively upon the sentence on indictment G10077355.1.

Indictment G10077355.1

Offence

Maximum

Sentence

Cumulation

1
Trafficking in a drug of dependence

Drugs, Poisons and Controlled Substances Act 1981 s 71AC
15 years 18 months 9 months

2
Aggravated burglary

Crimes Act 1958 s 77(1)
25 years 4 years Base

3
Make threat to inflict serious injury

Crimes Act 1958 s 21
5 years 9 months 3 months

4 Theft 10 years 6 months -

5 Obtain financial advantage by deception 10 years 1 month -

Indictment G10077355.1	Offence	Maximum	Sentence	Cumulation
1	Trafficking in a drug of dependence Drugs, Poisons and Controlled Substances Act 1981 s 71AC	15 years	18 months	9 months
2	Aggravated burglary Crimes Act 1958 s 77(1)	25 years	4 years	Base
3	Make threat to inflict serious injury Crimes Act 1958 s 21	5 years	9 months	3 months
4	Theft	10 years	6 months	-
5	Obtain financial advantage by deception	10 years	1 month	-

Indictment G10077355.1 (cont.)

Offence

Maximum

Sentence

Cumulation

6
Handle stolen goods

Crimes…

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.

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Details

Case: [2017] VSCA 214
Decision Date: 25 August 2017

CaseChat Overview and Summary

In the matter of Akoka versus The Queen, the appeal before the court centred on the sentence handed down to the appellant following his conviction for robbery, aggravated burglary, and trafficking a drug of dependence. The appellant had spent twelve months in a residential rehabilitation facility prior to sentencing, a period which he argued should be taken into account in the overall sentencing. The Court of Appeal in Australia was tasked with determining whether the original sentence was manifestly excessive, and if there had been an error in the exercise of the court's discretion to exercise mercy.

The primary legal issue was whether the trial judge had erred in not sufficiently moderating the sentence on account of the time the appellant had spent in the rehabilitation facility. The appellant argued that the trial judge had failed to adequately consider the positive effects of the rehabilitation in mitigating the severity of the sentence. The court was also required to determine whether the trial judge had conflated the principles of mercy with those in Boulton v The Queen, and whether there had been an error in the approach to the exercise of mercy.

The court found that no error had been disclosed in the trial judge's approach to the exercise of mercy, and that the sentence was not manifestly excessive. However, the court did find that the trial judge had failed to adequately moderate the sentence on account of the time spent in rehabilitation, and accordingly allowed the appeal. The appellant was resentenced to a total effective sentence of five years' imprisonment, with a non-parole period of two years and six months. The court followed the principles set out in R v Delaney, Renshaw v The Queen, and R v Eyles (No 3) in reaching its decision.

Orders