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Ihemeje v R

Ihemeje v R

Case [2012] NSWCCA 269 14 December 2012

Natural Justice & Procedural Fairness

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ihemeje v R [2012] NSWCCA 269
Hearing dates: 28 September 2012
Decision date: 14 December 2012
Before: McClellan CJ at CL at [1]
Hidden J at [2]
Adamson J at [3]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Adjust the non-parole period fixed by Puckeridge DCJ to commence on 4 May 2010 and to expire on 3 December 2013.
(4) Otherwise confirm the sentences imposed by Puckeridge DCJ.

Catchwords: CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - offences of dealing with money or property the proceeds of crime - non-parole period in respect of federal offences - whether matters on which the applicant was not convicted were taken into account in sentencing - whether the sentencing judge made findings that were not open to him - matters taken into account in sentencing
Legislation Cited: - Crimes Act 1914 (Cth)
- Criminal Code (Cth)
- Financial Transaction Reports Act 1988 (Cth)
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases Cited: - Cranshaw v R [2009] NSWCCA 80
- Du Randt v R [2008] NSWCCA 121
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Horne v R [2011] NSWCCA 225
- R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331
- R v Edwards (1996) 90 A Crim R 510
- R v Guo; R v Qian [2010] NSWCCA 170
- R v Li [2010] NSWCCA 125; 202 A Crim R 195
Category: Principal judgment
Parties: Cyril Ihemeje (Applicant)
Regina (Respondent)
Representation: Counsel:
M C Ramage QC (Appplicant)
P McGuire (Respondent)
Solicitors:
Jeffreys Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2009/12016
Publication restriction: None
Decision under appeal

Date of Decision:

2010-05-06 00:00:00

Before:

Puckeridge DCJ

File Number(s):

2009/12016

Judgment

McCLELLAN CJ at CL: I agree with Adamson J.

HIDDEN J: I acre with Adamson J.

ADAMSON J: The applicant applies for an extension of time for leave to appeal and for leave to appeal on sentence.

The applicant stood trial on 22 March 2010 before Puckeridge DCJ and a jury in respect of an indictment with eleven counts which alleged that the applicant dealt with various amounts of money or property that was proceeds of crime and was reckless as to the fact that the money or property was proceeds of crime.

The trial concluded on 6 May 2010. The jury returned a verdict of guilty to Counts 7 and 8. In respect of the other nine counts the jury was unable to reach a verdict.

The two counts on which the applicant was found guilty involved the laundering of a total of $592,809 which had been obtained by frauds on the Commonwealth Bank of Australia ("CBA") and Westpac Banking Corporation ("WBC").

The maximum penalty for Counts 7 and 8 - offences under s 400.4(2) of the Criminal Code (Cth) - is 10 years imprisonment and/ or 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 Ihemeje v R

Details

AGLC: Ihemeje v R [2012] NSWCCA 269
Case: [2012] NSWCCA 269
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the case of Ihemeje v R, the applicant, Ihemeje, appealed against the sentence imposed by the Supreme Court of Victoria, seeking a reduction of the sentence on the grounds that it was manifestly excessive. Ihemeje was convicted of dealing with money or property that were proceeds of crime and faced a non-parole period in relation to federal offences. The appeal centred on whether the sentencing judge took into account matters that Ihemeje was not convicted of and whether the sentencing judge made findings that were not open to him. The court was required to determine whether the sentence imposed was appropriate and whether the sentencing judge correctly considered all relevant factors in arriving at the sentence.

The court examined the sentencing principles relevant to the case, particularly the need to balance the deterrence and denunciation functions of sentencing with the rehabilitation of the offender. The court considered whether the sentencing judge erred in taking into account matters not found by the jury or whether he made findings that were not open to him. The court found that the sentence was not manifestly excessive and that the sentencing judge correctly considered all relevant factors in arriving at the sentence. The court held that the sentencing judge did not make findings that were not open to him and that the matters taken into account in sentencing were properly considered.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence imposed was appropriate and that the sentencing judge correctly considered all relevant factors in arriving at the sentence. The court also found that the matters taken into account in sentencing were properly considered and that the sentence was not manifestly excessive. The court held that the applicant's appeal against sentence was without merit.

Orders