Medium Neutral Citation: Aloniu v R [2017] NSWCCA 74
Hearing dates: 22 March 2017
Date of orders: 20 April 2017
Decision date: 20 April 2017
Before: Hoeben CJ at CL [1]
Walton J at [2]
Price J at [85]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – three counts of aggravated sexual intercourse without consent – whether procedural fairness denied – requirement of notice for a factor in aggravation –dealing with the applicant’s knowledge of the complainant being underage as an aggravating factor – failure to give notice to the applicant – whether error in finding applicant held knowledge of the offence – circumstantial evidence supported inference to support finding of knowledge to criminal standard – resentencing discretion – lesser sentence not warranted – application of s 6(3) of the Criminal Appeal Act 1912 – leave to appeal is granted – the appeal is dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Currie v R [2013] NSWCCA 267
Franklin v R [2016] NSWCCA 319
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
MRW v R [2011] NSWCCA 260
R v Stokes (2008) 185 A Crim R 74; [2008] NSWCCA 123
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107
Category: Principal judgment
Parties: Malie Aloniu (Applicant)
Regina (Respondent)
Representation:
Counsel:
I Nash (Applicant)
S Dowling (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/127863
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

Criminal

Date of Decision:

9 October 2015

Before:

Frearson DCJ

File Number(s):

2013/127863

Judgment

HOEBEN CJ at CL: I agree with Walton J.
WALTON J: This matter concerns an application for leave to appeal, filed on 17 November 2016, against the sentence imposed upon him on 9 October 2015 by Frearson DCJ (“the sentencing judge”) in the Sydney District Court. After pleading guilty, the applicant was sentenced for three counts of aggravated sexual intercourse without consent, knowing the complainant was not consenting with the circumstance of aggravation being that she was under his authority. The offences were contrary to s 61J(1) of the Crimes Act 1900 (NSW) (“the Act”) for which there is a maximum penalty of 20 years imprisonment. A standard non-parole period of 10 years applied.
Each charge, with respect to which the applicant pleaded guilty, was identical. The offences involved digital penetration (Count 1), cunnilingus (Count 2) and penile/vaginal intercourse (Count 3) during a single episode on a date between 9 December 2010 and 25 December 2010. The complainant was the applicant’s niece by marriage and was aged 15 at the time of the assaults.
The applicant was…

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 Aloniu v R

Details

AGLC: Aloniu v R [2017] NSWCCA 74
Case: [2017] NSWCCA 74
Decision Date: 20 April 2017

CaseChat Overview and Summary

The appellant, Aloniu, appealed against his sentence for three counts of aggravated sexual intercourse without consent. The trial judge imposed a sentence of imprisonment for a total of 17 years and 3 months, with a non-parole period of 12 years and 9 months. The appellant argued that he was denied procedural fairness as the prosecution did not provide notice of its intention to rely on the aggravating factor that he knew the complainant was underage. The prosecution contended that the evidence supported a finding that the appellant knew the complainant was underage, and that the sentence was appropriate. The High Court of Australia considered whether the failure to give notice of the aggravating factor constituted a procedural error and whether the evidence supported the trial judge's finding of knowledge. The Court held that the failure to give notice of the aggravating factor did not render the proceedings unfair, as the appellant had an opportunity to challenge the evidence of knowledge, and the evidence supported the trial judge's finding that the appellant knew the complainant was underage. The Court also held that the sentence was not manifestly excessive and that a lesser sentence was not warranted. The appeal was dismissed, and the original sentence was affirmed.

The legal issues in this case were whether the failure to give notice of the aggravating factor amounted to a procedural error, and whether the evidence supported the trial judge's finding of knowledge. The Court held that the failure to give notice of the aggravating factor did not render the proceedings unfair, as the appellant had an opportunity to challenge the evidence of knowledge, and the evidence supported the trial judge's finding that the appellant knew the complainant was underage. The Court also held that the sentence was not manifestly excessive and that a lesser sentence was not warranted. The Court applied section 6(3) of the Criminal Appeal Act 1912, which provides that an appeal against sentence shall not be allowed unless the Court is of the opinion that the sentence was excessive or otherwise unjust. The Court held that the sentence was not excessive or unjust, and dismissed the appeal.

Orders