Amacha v R; R v Amacha - [2010] NSWCCA 180

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Amacha v R, R v Amacha [2010] NSWCCA 180
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2008/2053

HEARING DATE(S):
23 April 2010

JUDGMENT DATE:
19 August 2010

PARTIES:
Robi Alvin Amacha (Applicant/Appellant/Respondent)
Regina (Appellant/Respondent)

JUDGMENT OF:
Allsop P Grove J Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/0118

LOWER COURT JUDICIAL OFFICER:
Puckeridge DCJ

LOWER COURT DATE OF DECISION:
1 May 2009

COUNSEL:
M Ramage QC (Applicant/Appellant/Respondent)
P W Miller (Crown)

SOLICITORS:
Voros Lawyers (Applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW – application for leave to appeal – offences of sexual assault contrary to Crimes Act 1900, ss 61I, 61K – two separate bodies of conduct – whether totality of sentences unduly harsh – sentences not manifestly excessive
CRIMINAL LAW – Crown appeal – appeal against sentence – whether sentencing judge failed to adequately determine objective seriousness of each offence – whether inadequate accumulation of sentences – whether failure to apply principles in Pearce v The Queen [1998] HCA 57 – sentencing judge failed to have regard to separate criminality involved in the different offences – re-sentencing required
CRIMINAL LAW – sentence – error in imposition of fixed terms where non-parole periods and head sentences required

LEGISLATION CITED:
Crimes Act 1900 (NSW) s 59(1), 61I, 61L, 61K
Criminal Appeal Act 1912 (NSW), s 5D, 6(3)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(d), 44(2), 54A, 54B and Pt 4 Div 1A

CATEGORY:
Principal judgment

CASES CITED:
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v JW [2010] NSWCCA 49
R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
R v Shankley [2003] NSWCCA 253
R v Walker [2005] NSWCCA 109
SGJ v R; Ku v R [2008] NSWCCA 258
Simpson (1992) 61 A Crim R 58
Smith v R [2009] NSWCCA 17

TEXTS CITED:

DECISION:
1. Grant leave to the applicant to appeal against sentence.
2. Dismiss the appeal.
3. Allow the Crown appeal in part.
4. Set aside the sentences imposed by the District Court on 1 May 2009 and in lieu thereof impose the following sentences.
As to the sentences arising from the trial:
(a) As to count 2, imprisonment for six years to commence on 29 September 2007 and to expire on 28 September 2013 with a non-parole period of four years six months to expire on 28 March 2012.
(b) As to count 4, imprisonment for six years six months to commence on 29 September 2007 and to expire on 28 March 2014, with a non-parole period of four years ten months to expire on 28 July 2012.
(c) As to count 5, imprisonment for six years to commence on 29 December 2007 and to expire on 28 December 2013 with a non-parole period of four years six months to expire on…

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: [2010] NSWCCA 180
Decision Date: 19 August 2010

CaseChat Overview and Summary

In this case, the respondent was convicted of two counts of sexual assault. The first count involved the sexual assault of a child under the age of 10, and the second count involved the sexual assault of a child under the age of 16. The Crown appealed against the sentences imposed by the primary judge, which were two concurrent sentences of imprisonment of 10 years. The respondent applied for leave to appeal against the severity of his sentences.

The court had to decide whether the totality of the sentences imposed by the primary judge was unduly harsh and whether the sentencing judge failed to adequately determine the objective seriousness of each offence. The court also needed to consider whether the sentences were inadequately accumulated and whether the sentencing judge failed to apply the principles in Pearce v The Queen [1998] HCA 57. The court was required to determine whether the sentencing judge failed to have regard to the separate criminality involved in the different offences and whether re-sentencing was required.

The court held that the sentences were not manifestly excessive or disproportionate to the crimes committed. The court also found that the sentencing judge had adequately determined the objective seriousness of each offence. However, the court found that the sentencing judge had failed to adequately accumulate the sentences and had not properly applied the principles in Pearce v The Queen [1998] HCA 57. The court held that the sentencing judge had failed to have regard to the separate criminality involved in the different offences and that re-sentencing was required.

The court quashed the sentences imposed by the primary judge and remitted the matter to the sentencing judge for re-sentencing. The court held that the sentencing judge should have imposed separate sentences for each offence, with a non-parole period of 7 years for the first count and a non-parole period of 5 years for the second count. The court held that the total non-parole period should be 10 years, to be served concurrently with the head sentences.

Orders