New South Wales
Court of Criminal Appeal
CITATION: Baleiovalau v R [2009] NSWCCA 153 HEARING DATE(S): 19 May 2009
JUDGMENT DATE:
29 May 2009JUDGMENT OF: Hodgson JA at 1; Buddin J at 2; Price J at 3 DECISION: 1. Leave to appeal against sentence granted
2. Appeal dismissedCATCHWORDS: 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 32PARTIES: 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
29 May 2009HODGSON JA
BUDDIN J
PRICE J
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 3 : Between 10 and 13 April 2005 at Sydney … did conspire with Semisi Kinikini, Iorangi Pera and Joseph Lesi to commit a robbery in company on the Qantas Staff Credit Union at Hurstville while armed with a dangerous weapon, namely a shortened 12-gauge self-loading shotgun ( the conspiracy ). As this was…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 .
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- AGLC
- Baleiovalau v R [2009] NSWCCA 153
- Case
- [2009] NSWCCA 153
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Legal Principle Established
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