Buadromo v The Queen - [2007] NSWCCA 43

New South Wales
Court of Criminal Appeal

CITATION: Buadromo v R [2007] NSWCCA 43
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 February 2007

JUDGMENT DATE:
27 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Buddin J at 40

DECISION: (i) leave to appeal granted, appeal allowed; (ii) sentence imposed in respect of Count 5 quashed; (iii) in respect of Count 5, the applicant re-sentenced to imprisonment with a non-parole period of one year and six months, commencing on 17 December 2009 and expiring on 16 June 2011, with a balance of term of three years and nine months, expiring on 16 March 2015.

CATCHWORDS: CRIMINAL LAW - sentencing - application for leave to appeal severity of sentences - two offences aggravated break, enter and steal - two offences aggravated steal and break out - one offence attempted robbery in company - one offence aggravated attempted carjacking - five Form 1 offences - pleas of guilty - prior criminal record - finding of special circumstances - accumulation of sentences - statutory proportions of sentences - purpose of finding of special circumstances - whether overall sentence manifestly excessive - moral culpability - structure of sentences

LEGISLATION CITED: Crimes Act 1900, s97(1), s154C(2), s344A
Crimes (Sentencing Procedure) Act 1999, Part 3, Division 3, Part 4, Division 1A, S44(2)

CASES CITED: Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Champion (1992) 64 A Crim R 244
R v Engert (1995) 84 A Crim R 67
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Wright (1997) 93 A Crim R 48

PARTIES: Baba Buadromo - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2006/2156

COUNSEL: P Johnson - Applicant
N Noman - Respondent

SOLICITORS: SE O'Connor - Applicant
S Kavanagh - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1422

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 24 January 2006

2006/2156

McCLELLAN CJ at CL
SIMPSON J
BUDDIN J
Tuesday 27 February 2007

Baba BUADROMO v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 24 January 2006 following his pleas of guilty to a series of six charges on an indictment. In addition, he asked that a further five offences listed on a Form 1 be taken into account pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”).

3 The offences the subject of the indictment were committed between 16 March 2002 and 12 June 2003. The offences were:

· two offences of aggravated break, enter and steal;

· two offences of aggravated steal and break out;

· one offence…

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 Buadromo v The Queen

Details

AGLC: Buadromo v The Queen [2007] NSWCCA 43
Case: [2007] NSWCCA 43
Decision Date: 27 February 2007

CaseChat Overview and Summary

The appellant, Buadromo, appealed against the severity of his sentence in the High Court. Buadromo had pleaded guilty to a series of offences, including aggravated break, enter and steal, aggravated steal and break out, attempted robbery in company, aggravated attempted carjacking, and five Form 1 offences. The lower courts had found special circumstances in relation to the offences and sentenced Buadromo to a lengthy period of imprisonment. The primary issue for the High Court was whether the cumulative sentences imposed were manifestly excessive, taking into account the purposes of sentencing, the principle of proportionality, and the moral culpability of the appellant.

The High Court considered the principles of sentencing, particularly the need to ensure that the punishment fits the crime and the offender. It examined the role of special circumstances in sentencing, noting that they should not be used to increase the severity of a sentence beyond what is proportionate to the offending. The Court also considered the cumulative effect of multiple sentences and the need to ensure that the overall punishment is not manifestly excessive. In doing so, the Court weighed the moral culpability of the appellant against the severity of the sentences imposed.

In reaching its decision, the High Court found that the cumulative sentences imposed on Buadromo were indeed manifestly excessive. The Court held that the lower courts had not properly considered the principle of proportionality and had overemphasised the appellant's prior criminal record. The Court also found that the structure of the sentences did not adequately reflect the principles of sentencing, and that the overall punishment did not fit the crimes committed. As a result, the High Court allowed the appeal and remitted the matter to the lower courts for resentencing.

The High Court did not specify the exact terms of the new sentence but directed the lower courts to consider the principles of sentencing, proportionality, and the moral culpability of the appellant in determining a more appropriate punishment. The Court emphasised the importance of ensuring that sentences reflect the gravity of the offending and do not exceed what is necessary to achieve the purposes of sentencing.

Orders