Anaki v The Queen - [2006] NSWCCA 414

CITATION: ANAKI v R [2006] NSWCCA 414

HEARING DATE(S): 10 November 2006

JUDGMENT DATE:
10 November 2006

JUDGMENT OF: McClellan CJ at CL at 43; Hulme J at 1; Rothman J at 44

DECISION: See paragraph 40

PARTIES: William Anaki
Regina

FILE NUMBER(S): CCA 2005/1788

COUNSEL: Crown: J Dwyer
Applicant: C Nash, D Kang

SOLICITORS: Crown: S Kavanagh
Applicant: Ford Criminal Lawyers

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1422

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

IN THE COURT OF
CRIMINAL APPEAL

2006/1849

McCLELLAN CJ AT CJ
HULME J
ROTHMAN J
FRIDAY 10 NOVEMBER 2006

William James ANAKI v Regina

Judgment
1 HULME J : William Anaki seeks leave to appeal against three sentences imposed on him on 10 February last by Judge Blackmore. The offences and the sentences imposed were:-

1. On 2 May 2003 while armed with an offensive instrument, namely a sledge hammer assaulting Robert Zobouian with intent to rob - imprisonment for a non parole period of 3 years and 6 months commencing on 2 August 2011 together with a balance of term of 3 years and 6 months.

2. On 13 May 2003 being armed with an offensive weapon, namely a sledge hammer robbing Vic Baracz of a sum of money, the property of Westpac Banking Corporation – imprisonment for a non parole period of 4 years and 6 months commencing on 2 August 2005 together with a balance of term of 1 year and 6 months.

3. On 12 June 2003 attempting to rob Yashika Krishan of a sum of money, the property of the Commonwealth Bank of Australia whilst armed with an offensive weapon, namely a sledge hammer - imprisonment for a non parole period of 4 years and 6 months commencing on 2 August 2005 together with a balance of term of 1 year and 6 months.

2 The effective sentence was thus of imprisonment for a non parole period of 9 years and 6 months commencing on 2 August 2005 and concluding on 2 February 2015 together with a balance of term of 3 years and 6 months.

3 The offences arose pursuant to s97(1) of the Crimes Act and each rendered the Applicant liable to imprisonment for 20 years.
4 Taken into account in connection with the sentence imposed on the first count were four offences on a Form 1, namely:-

(i) On 13 May 2003 being carried in a conveyance without the consent of the owner.

(ii) On 27 May 2003 being armed (with a sledge hammer) with intent to commit an indictable offence, namely the armed robbery of the Westpac Bank at Leichhardt.

(iii) On 27 May 2003 being carried in a conveyance without the consent of the owner.

(iv) On 12 June 2003 aggravated (being armed with a weapon) assault with intent to take or drive a motor vehicle.

5 The circumstances of the first offence were that the Applicant and three co-offenders drove to the Commonwealth Bank at Hurstville. One offender remained in the…

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 Anaki v The Queen

Details

AGLC: Anaki v The Queen [2006] NSWCCA 414
Case: [2006] NSWCCA 414
Decision Date: 10 November 2006

CaseChat Overview and Summary

William Anaki appealed against the sentences imposed by Judge Blackmore of the District Court, arguing that they were excessive and that the sentencing judge had not properly applied the principle of totality and special circumstances. The Court of Criminal Appeal considered five grounds of appeal. The first ground, concerning the application of the statutory ratio, was dismissed as the judge was entitled to vary the statutory ratio based on the special circumstances of the case. The second ground, regarding the principle of totality, was partially upheld. While the individual sentences were not excessive, the cumulative effect of the sentences, combined with the time spent in custody serving a previous sentence, resulted in an effective sentence of over 11 years, which was considered excessive. The third ground, which also related to the principle of totality, was dismissed. The fourth ground, concerning the delay in sentencing, was rejected as the delay did not significantly impact the appellant. The fifth ground, regarding the excessiveness of the sentence, was upheld as the cumulative effect of the sentences was excessive. The Court varied the sentences to reduce the overall term to 10 years, with the non-parole periods adjusted accordingly. Leave to appeal was granted, and the sentences on counts 1 and 3 were varied, while the sentence on count 2 remained confirmed.

Orders