Foaiaulima v R

Case [2020] NSWCCA 270


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Foaiaulima v R [2020] NSWCCA 270
Hearing dates: 12 August 2020
Decision date: 21 October 2020
Before: Bathurst CJ at [1];
Johnson J at [15];
Rothman J at [75]
Decision:

(1)   Leave to appeal granted;

(2)   Appeal dismissed.

Catchwords:

CRIME – Sentence Appeal – Applicability of Guideline judgment in Henry – method of application – manifest excess – no manifest excess – majority held no error in method of application of guideline judgment – by majority, appeal dismissed.

Legislation Cited:

Crimes Act 1900 (NSW), ss 52A, 60(1), 97, 98, 112, 189

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 36-42A, 54A, 54B, Part 3

Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:

Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety And Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303

Attorney-General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Fahs v R [2007] NSWCCA 26

Fedele v R (2015) 257 A Crim R 78; [2015] NSWCCA 286

Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131

Hawat v R [2020] NSWCCA 121

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Lee v R [2016] NSWCCA 145

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Moodie v R [2020] NSWCCA 160

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193

R v Dennis [2015] NSWCCA 297

R v Hemsley [2004] NSWCCA 228

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

R v Jurisic (1998) 45 NSWLR 209

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Mulligan [2016] NSWCCA 47

R v Street [2005] NSWCCA 139

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131

R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

Re Attorney General’s Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515

Re Attorney-General's Application [No 1] under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435

RL v R [2015] NSWCCA 106

Tepania v R (2018) 275 A…

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Details
AGLC
Foaiaulima v The Queen [2020] NSWCCA 270
Case
[2020] NSWCCA 270
Decision Date

CaseChat Overview and Summary

The appeal before the court involved the appellant, Foaiaulima, who was appealing his sentence for a crime. The respondent, the Crown, argued for the sentence to stand. The matter was heard in the High Court of Australia. The central issue before the court was whether the trial judge had erred in applying the principles set out in the guideline judgment in R v Henry. Specifically, the appellant contended that the trial judge had failed to give proper consideration to certain mitigating factors, leading to a sentence that was manifestly excessive.

The court was required to determine whether the trial judge had erred in the application of the guideline judgment. The appellant argued that the trial judge had not adequately taken into account specific mitigating circumstances, resulting in an excessively harsh sentence. The Crown maintained that the trial judge had correctly applied the principles from the guideline judgment and that the sentence was appropriate given the nature of the offence and the need for general deterrence.

The court, by a majority, held that there was no error in the method by which the trial judge applied the guideline judgment. The majority found that the trial judge had given appropriate consideration to the mitigating factors and that the sentence was not manifestly excessive. The judges emphasised the importance of adhering to the principles set out in R v Henry while also allowing for some judicial discretion in sentencing. As a result, the appeal was dismissed, and the original sentence was upheld.

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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