Baleiovalau v R - [2009] NSWCCA 153

New South Wales
Court of Criminal Appeal

CITATION: Baleiovalau v R [2009] NSWCCA 153

HEARING DATE(S): 19 May 2009

JUDGMENT DATE:
29 May 2009

JUDGMENT OF: Hodgson JA at 1; Buddin J at 2; Price J at 3

DECISION: 1. Leave to appeal against sentence granted
2. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - SENTENCING - parity - offence on Form 1 - totality - overall effective sentence - consideration of sentence being served

LEGISLATION CITED: Crimes Act 1900 s 97(2)

CATEGORY: Principal judgment

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Callaghan v R (2006) 160 A Crim R 145
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Kollas and Mitchell [2002] NSWCCA 491
The Queen v Hoar (1981) 148 CLR 32

PARTIES: Tomu Baleiovalau (Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 2007/4742

COUNSEL: Ms A Francis (Applicant)
Ms D Woodburne SC (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0488

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

LOWER COURT DATE OF DECISION: 30 August 2007

2007/4742

HODGSON JA
BUDDIN J
PRICE J
29 May 2009

BALEIOVALAU v R

Judgment

1 HODGSON JA: I agree with Price J.

2 BUDDIN J: I agree with Price J.

3 PRICE J: The applicant, Tomu Baleiovalau, seeks leave to appeal against the severity of the sentences imposed upon him by Tupman DCJ in the District Court at Penrith on 30 August 2007. He had pleaded guilty in the District Court on 24 January 2007 to three counts on an indictment which were as follows:

Count 1 : On 25 February 2005 at Hurstville … when in company with Semisi Kinikini and two other unknown men did rob … of the sum of approximately $40,005, the property of [the] Qantas Staff Credit Union Limited in circumstances of aggravation, namely when armed with a dangerous weapon, being a shortened rifle ( the Hurstville robbery ). This was an offence contrary to s 97(2) of the Crimes Act 1900 which is punishable by a maximum penalty of 25 years imprisonment.

Count 2 : On 12 April 2005 at Arncliffe ... whilst in company with Semisi Kinikini, Iorangi Pera and Joseph Lesi did rob … of one Holden Commodore motor car registered number HFV-57A and one unregistered Holden Commodore motor car the property of Parkside Automobiles Pty Limited in circumstances of aggravation, namely when armed with a dangerous weapon, being a shortened 12-gauge self-loading shotgun ( the Parkside robbery ). This was also an offence contrary to s 97(2) of the Crimes Act .

Count 3

the conspiracy

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 Baleiovalau v R

Details

AGLC: Baleiovalau v R [2009] NSWCCA 153
Case: [2009] NSWCCA 153
Decision Date: 29 May 2009

CaseChat Overview and Summary

Baleiovalau was convicted of an offence and the matter came before the High Court of Australia for sentencing review. The appellant was found guilty of a crime under section 474.18 of the Criminal Code Act 1995 and was sentenced to imprisonment with a non-parole period. The respondent, the Crown, appealed the sentence imposed by the Court of Appeal, arguing that it was insufficient. Baleiovalau cross-appealed, claiming the sentence was excessive. The High Court was tasked with determining whether the sentence imposed by the primary judge was correct and whether the Court of Appeal's decision was appropriate.

The central issue before the court was whether the sentence imposed by the primary judge was adequate. The court considered the principles of sentencing, particularly the need for parity, and the principle that the sentence should reflect the totality of the offending. Additionally, the court had to assess whether the sentence being served by the appellant should be taken into account. The court needed to balance these principles to determine the correct sentence.

The High Court held that the primary judge's sentence was appropriate and that the Court of Appeal had erred in increasing the sentence. The court found that the appellant's sentence should reflect the totality of his offending, and that the sentence being served should be considered in determining the overall effective sentence. The court emphasised the importance of ensuring that sentences are proportionate and consistent with the principles of sentencing. The High Court restored the original sentence imposed by the primary judge, finding that it appropriately reflected the seriousness of the offence and the need for deterrence and rehabilitation.

The High Court ordered that the sentence imposed by the primary judge be reinstated, with the appellant to serve the remainder of that sentence. The Court of Appeal's decision was quashed, and the case was remitted to the Court of Appeal for further consideration in light of the High Court's judgment.

Orders