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Baleiovalau v The Queen

Baleiovalau v The Queen

Case [2015] NSWCCA 305 2 December 2015

Appeal

Sentencing

Jurisdiction

Special Circumstances

Proportionality

Totality Principle

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Baleiovalau v R [2015] NSWCCA 305
Hearing dates: 19 November 2015
Decision date: 02 December 2015
Before: Gleeson JA at [1];
Bellew J at [78];
R S Hulme AJ at [79]
Decision:
1   Grant leave to appeal.

2   Appeal allowed.

3   The sentence imposed in the District Court on 21 August 2014 is quashed.
4   The applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 2 years commencing on 11 April 2012 and expiring on 10 April 2014, with a balance of term of 3 years commencing on 11 April 2014 and expiring on 10 April 2017. The Court notes that the applicant is now eligible for release on parole.
Catchwords:
CRIMINAL LAW – appeals – sentencing – applicant sentenced to term of imprisonment for attempted robbery offence committed in 2004 contrary to s 97(2) of the Crimes Act 1900 (NSW) – accumulation of sentence for 2004 offence on earlier sentence for similar armed robbery offences in 2005 resulted in an overall term of 12 years with an overall non-parole period of 10 years – whether sentencing judge erred in assessment of objective seriousness of 2004 offence – whether judge failed to give effect to principle of totality – whether overall term of sentence in proportion to overall non-parole period excessive – whether judge erred by comparing applicant’s circumstances with those of an alleged co-offender
CRIMINAL LAW – appeals – sentencing – resentence – likely sentence imposed if applicant dealt with for all offences at same time – finding of special circumstances on the basis of accumulation
Legislation Cited: Crimes Act 1900 (NSW) s 97
Criminal Appeal Act 1912 (NSW) s 6(3)
Cases Cited: Baleiovalau v R [2009] NSWCCA 153
Barrett v R [2011] NSWCCA 213
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Kentwell v R [2014] HCA 37; 252 CLR 201
LG v R [2012] NSWCCA 249
Mill v The Queen [1988] HCA 70; 166 CLR 59
Mulato v R [2006] NSWCCA 282
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Todd [1982] 2 NSWLR 517
Wu v R [2011] NSWCCA 102; 211 A Crim R 88
Category: Principal judgment
Parties: Tomu Baleiovalau (Applicant)
Regina (Crown)
Representation:
Counsel:
W Hunt (Applicant)
H Baker (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/139741
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 August 2014

Before:

Lakatos SC DCJ

File Number(s):

2013/139741

Judgment

GLEESON JA: On 2 December 2013 the applicant, Tomu Baleiovalau, pleaded not guilty to an indictment alleging an offence, contrary to s 97(2) of the Crimes Act 1900 (NSW), of attempted robbery while being armed with a dangerous weapon, namely a…

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 The Queen

Details

AGLC: Baleiovalau v The Queen [2015] NSWCCA 305
Case: [2015] NSWCCA 305
Decision Date: 02 December 2015

CaseChat Overview and Summary

The case of Baleiovalau v The Queen involved an appeal against a sentence imposed by the Supreme Court of New South Wales. Baleiovalau was sentenced to a term of imprisonment for an attempted robbery committed in 2004, an offence contrary to section 97(2) of the Crimes Act 1900 (NSW). This was followed by a sentence for similar armed robbery offences in 2005. The accumulation of these sentences resulted in an overall term of 12 years with an overall non-parole period of 10 years. The appeal focused on whether the sentencing judge erred in assessing the objective seriousness of the 2004 offence, whether the principle of totality was adequately applied, whether the overall term of sentence was excessive relative to the non-parole period, and whether the judge erred in comparing the applicant’s circumstances with those of an alleged co-offender.

The legal issues addressed by the court involved the proper application of sentencing principles, particularly the objective seriousness of the offence, the principle of totality, and the appropriateness of the overall term of imprisonment relative to the non-parole period. The court also considered whether the sentencing judge had erred by comparing the applicant's circumstances with those of an alleged co-offender. The core of the appeal was to determine if the sentencing judge had made any errors in the assessment and application of sentencing principles that warranted a resentencing.

The court found that the sentencing judge had indeed erred in the assessment of the objective seriousness of the 2004 offence and in the application of the principle of totality. The overall term of imprisonment was deemed disproportionate to the overall non-parole period. Furthermore, the court found that the judge had erred by comparing the applicant’s circumstances with those of an alleged co-offender, which was inappropriate in the context of sentencing. As a result, the court allowed the appeal and ordered a resentencing.

The final orders included a direction for the re-sentencing of Baleiovalau by the Supreme Court, taking into account the errors identified by the appellate court. The resentencing was to be done with due regard to the principles of sentencing, particularly focusing on the objective seriousness of the offences, the principle of totality, and the proportionality of the sentence.

Orders