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Imnetu v The Queen

Imnetu v The Queen

Case [2014] NSWCCA 99 5 June 2014

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Court of Criminal Appeal

New South Wales

Case Title: Imnetu v R

Medium Neutral Citation: [2014] NSWCCA 99

Hearing Date(s): 5/05/2014

Decision Date: 05 June 2014

Before: Basten JA at [1];
Fullerton J at [39];
RA Hulme J at [57]

Decision:
Appeal against sentence dismissed

Catchwords: CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - murder - above mid range of objective seriousness - determining effect of standard non-parole period absent error - whether lesser sentence warranted at law - relevance of post-offence conduct

Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79, 86; Pt 7
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A; Pt 4, Div 1A; Sch 2, Pt 7, cl 45
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 3 [9]
Criminal Appeal Act 1912 (NSW), ss 5, 6, 26

Cases Cited: A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the Conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 303 ALR 143
Ali v R [2014] NSWCCA 45
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Carlton v R [2014] NSWCCA 14
Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154
GAR v R (No 2) [2010] NSWCCA 163
Grant v R [2014] NSWCCA 67
House v The King [1936] HCA 40; 55 CLR 499
Imnetu v R [2006] NSWCCA 203
Kearns v R [2011] NSWCCA 103; 213 A Crim R 150
Mallard v The Queen [2005] HCA 68; 224 CLR 125
Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Burke [2002] NSWCCA 353
R v Chard [1984] AC 279
R v Douar [2005] NSWCCA 455; 159 A Crim R 154
R v JJT [2006] NSWCCA 283; 67 NSWLR 152
R v Way [2004] NSWCCA 131; 60 NSWLR 168
RLS v R [2012] NSWCCA 236
ZZ v R [2013] NSWCCA 83

Category: Principal judgment

Parties: Youssef Tecle Imnetu (Appellant)
The Crown (Respondent)

Representation

- Counsel: Counsel:
I McLachlan (Appellant)
R Herps (Crown)

- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2004/2875

Decision Under Appeal

- Before: Newman AJ

- Date of Decision: 26 August 2005

- Court File Number(s): 2004/2875

JUDGMENT

BASTEN JA: This matter comes before the Court pursuant to a referral by a judge of the Court pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"). The referral was consequent upon an application for an inquiry into the sentence imposed on Mr Imnetu, pursuant to s 78(1) of the Appeal and Review Act.…

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 Imnetu v The Queen

Details

AGLC: Imnetu v The Queen [2014] NSWCCA 99
Case: [2014] NSWCCA 99
Decision Date: 05 June 2014

CaseChat Overview and Summary

The case of Imnetu v The Queen concerns an appeal against the sentence imposed on the appellant, Imnetu, for the offence of murder. The appeal was referred to the Court of Appeal under Part 7 of the Crimes (Appeal and Review) Act 2001. The appellant conceded a Muldrock error in the original sentencing, which required the court to reassess the sentence in light of the error. The primary legal issues before the Court were whether the sentence imposed was appropriate given the objective seriousness of the offence and whether the appellant's post-offence conduct warranted a lesser sentence.

The Court of Appeal addressed the issue of the Muldrock error and its impact on the sentence. The Court noted that the appellant's murder offence fell above the mid-range of objective seriousness. In determining the appropriate sentence in the absence of the Muldrock error, the Court considered the effect of the standard non-parole period. The Court found that the appellant's post-offence conduct, which included cooperation with authorities and expressions of remorse, was relevant but did not warrant a lesser sentence at law. The Court concluded that the sentence imposed was appropriate given the circumstances and the objective seriousness of the offence.

The Court of Appeal upheld the original sentence, confirming that it was proportionate to the gravity of the offence. The Court emphasised the importance of considering the standard non-parole period and the appellant's post-offence conduct, but ultimately determined that these factors did not justify a lesser sentence. The Court's decision highlights the significance of accurately applying sentencing principles, particularly in cases where a Muldrock error is conceded. The appeal was dismissed, and the original sentence was affirmed.

Orders