Auimatagi v The Queen - [2011] NSWCCA 248

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AUIMATAGI v R [2011] NSWCCA 248
Hearing dates: 1 November 2011
Decision date: 17 November 2011
Before: McCLELLAN CJ at CL at 1
ADAMS J at 2
HOEBEN J at 3
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - conspiracy to commit a robbery while armed with an offensive weapon - whether sentencing judge could take into account as an aggravating factor that the offence was to be committed in company - whether sentence passed was manifestly excessive - to what extent should the commencement date of the sentence have been backdated - parity.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Hayek [2010] NSWCCA 139
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149
R v Sok [2000] NSWCCA 121
Regina v Yildiz [2006] NSWCCA 97, (2006) 160 A Crim R 218
Category: Principal judgment
Parties: Leeroy File Auimatagi - Applicant
Crown - Respondent
Representation: Mr I Todd - Applicant
Ms V Lydiard - Respondent Crown
B Sandland, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2009/261957
Decision under appeal

Date of Decision:

2010-11-26 00:00:00

Before:

English DCJ

File Number(s):

2009/261957

Judgment

McCLELLAN CJ at CL: I agree with Hoeben J

ADAMS J: I agree with Hoeben J.

HOEBEN J: On 21 May 2010 the applicant pleaded guilty before the Penrith Local Court that between 12.10am and 2.20am on 25 November 2009 at Blacktown he did conspire to rob the Quix Mobile Service Station of certain property while being armed with an offensive weapon.

The offence of robbery while armed with an offensive weapon is an offence contrary to the provisions of s97(1) of the Crimes Act 1900. The penalty for conspiracy to commit an offence is at large and is a common law offence. It was common ground that the proper approach to sentence on such a charge is to have regard to the maximum penalty prescribed for the substantive offence which in this case is imprisonment for 20 years.

The applicant came to be sentenced before English DCJ on 26 November 2010. The applicant asked the sentencing judge to take into account a Form 1 matter of possessing the means of disguising the face with intent to commit an indictable offence, namely armed robbery, contrary to s114(1)(c) of the Crimes Act 1900.

The applicant was sentenced to a term of imprisonment with a non-parole period of 2 years commencing 24 February 2010 and expiring 23 February 2012 with a balance of term of 1 year and 9 months expiring 23 November 2013.

The applicant seeks leave to appeal from the severity of this sentence upon the following grounds:

(1) That the court below fell into error in finding on a charge of conspiracy to commit armed robbery that being in company was an aggravating factor.

(2) That the court…

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 Auimatagi v The Queen

Details

AGLC: Auimatagi v The Queen [2011] NSWCCA 248
Case: [2011] NSWCCA 248
Decision Date: 17 November 2011

CaseChat Overview and Summary

The appellant, Auimatagi, appealed against his sentence following his conviction for conspiracy to commit a robbery while armed with an offensive weapon. The sentencing took place in the Supreme Court of Queensland, with the appeal heard by the Court of Appeal. The primary issues for the court were whether the sentencing judge could consider the fact that the offence was to be committed in company as an aggravating factor, whether the sentence imposed was manifestly excessive, and to what extent the commencement date of the sentence should be backdated to ensure parity.

The court first examined whether the sentencing judge could consider the commission of the offence in company as an aggravating factor. It found that such a consideration was not inherently inappropriate, but the judge must ensure that it does not result in double counting of the same aspect of the offence. In this case, the court found that the judge had not erred in this regard. Regarding the sentence's excessiveness, the court concluded that the sentence was not manifestly excessive, taking into account the seriousness of the offence and the need for general deterrence. Finally, on the issue of backdating the sentence, the court determined that the sentence should be backdated to the date of the appellant's first custody, ensuring that he did not gain an unfair advantage over others who had been sentenced concurrently.

The court upheld the appeal in part, ordering that the sentence should be backdated to the date of the appellant's first custody. The rest of the appeal was dismissed, and the original sentence was confirmed.

Orders