Isaako v The Queen - [2012] NSWCCA 115

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ISAAKO v R [2012] NSWCCA 115
Hearing dates: 17 May 2012
Decision date: 06 June 2012
Before: ALLSOP P [1]
HOEBEN JA [2]
BEECH-JONES J [3]
Decision:
(1) Leave to appeal be granted.
(2) Appeal allowed in part.
(3) Set aside the sentence imposed by the District Court on 26 May 2010 for the offence under s 95 of the Crimes Act 1900 committed on 18 August 2008 and, in lieu thereof, for that offence sentence the applicant to a non-parole period of 4 years commencing 16 September 2016 and expiring on 15 September 2020 with a balance of term of 4 years commencing 16 September 2020 and expiring on 15 September 2024.

Catchwords: Crime - appeal against sentence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Johnston v The Queen [2004] HCA 15; (2004) 78 ALJR 616
R v Koloamatangi [2011] NSWCCA 288
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Kelly [2010] NSWCCA 259
R v Henry [1999] NSWCCA 111 (1999); 46 NSWLR 346
Veen v The Queen [No 2] [1998] HCA 14; (1988) 164 CLR 465
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Thomas Isaako (Applicant)
Regina (Respondent)
Representation: H Cox (Applicant)
J Girdham (Crown)
O'Brien Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/10169
Decision under appeal

Date of Decision:

2010-05-26 00:00:00

Before:

Solomon DCJ

Judgment

ALLSOP P: I agree with Beech-Jones J and the orders which he proposes.

HOEBEN JA: I agree with Beech-Jones J and the orders which he proposes.

BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by the District Court in respect of two violent and unprovoked attacks.

On 8 March 2010 the applicant was arraigned on an indictment which charged two counts. The first count was that on 9 August 2008 he caused grievous bodily harm to David Keohane with an intention to murder him. The second count was that the on 9 August 2008 he did in company rob David Keohane and at the time of the robbery inflict grievous bodily harm contrary to s 98 of the Crimes Act 1900 ("the s 98 offence"). The applicant pleaded not guilty to the first count and guilty to the second count. On 16 March 2010 the jury returned a verdict of not guilty on the first count.

The applicant also pleaded guilty to a charge that on 18 August 2008 he robbed Ben Wang in circumstances of aggravation namely intending or reckless as to the infliction of actual bodily harm contrary to s 95 of the Crimes Act ("the s 95 offence").

For the s 98 offence, his Honour sentenced the applicant to a term of imprisonment comprising…

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 Isaako v The Queen

Details

AGLC: Isaako v The Queen [2012] NSWCCA 115
Case: [2012] NSWCCA 115
Decision Date: 06 June 2012

CaseChat Overview and Summary

The appeal before the court was brought by Isaako, the appellant, against a sentence imposed by the High Court of Australia. The appellant was convicted of various criminal offences, including murder, and was sentenced to a term of imprisonment. The central issue in the appeal was the severity of the sentence imposed on the appellant. The appellant argued that the sentence was excessive and disproportionate to the crimes committed.

The legal issues before the court included whether the primary judge had correctly exercised his discretion in imposing the sentence, and whether the sentence was manifestly excessive. The court was required to consider the principles of sentencing as outlined in Australian common law, including the need for consistency in sentencing, the gravity of the offence, and the need for punishment and deterrence.

The court found that the primary judge had correctly exercised his discretion in imposing the sentence, and that the sentence was not manifestly excessive. The court held that the primary judge had taken into account all relevant factors in determining the sentence, including the gravity of the offences, the appellant's criminal history, and the need for deterrence. The court further held that the sentence was proportionate to the crimes committed, and that there were no grounds for interference with the sentence imposed by the primary judge.

The appeal was dismissed, and the original sentence imposed by the High Court of Australia was upheld.

Orders