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 accumulationLegislation 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 88Category: Principal judgment Parties: Tomu Baleiovalau (Applicant)
Regina (Crown)Representation: Counsel:
Solicitors:
W Hunt (Applicant)
H Baker (Crown)
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…
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- AGLC
- Baleiovalau v The Queen [2015] NSWCCA 305
- Case
- [2015] NSWCCA 305
- Decision Date
CaseChat Overview and Summary
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
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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