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Kanengele-Yondjo v Regina

Kanengele-Yondjo v Regina

Case [2006] NSWCCA 354 16 November 2006

Malicious Infliction of Grievous Bodily Harm

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CITATION: Kanengele-Yondjo v Regina [2006] NSWCCA 354

HEARING DATE(S): 24 October 2006

JUDGMENT DATE:
16 November 2006

JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 2; Hislop J at 3

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: The order previously made suppressing the publication of the names of the victims is continued - Criminal law - Sentence - Malicious infliction of grievous bodily harm by infecting with HIV virus - Worst case category - Discount for plea of guilty - Totality - Not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - ss 35(1)(b), 36
Crimes (Sentencing Procedure) Act 1999 - ss 3A, 21A(3)(k), 21A(5)), 22(1), 45, 101A
Criminal Appeal Act 1912 - s 6(3)

CASES CITED: Markarian v R (2005) 215 ALR 213
Mill v the Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Johnstone [2004] NSWCCA 307
R v Scott [2003] NSWCCA 286
R v Simpson (2001) 53 NSWLR 704
R v Thompson (1999-2000) 49 NSWLR 383
R v Twala (NSWCCA unreported 4 November 1994)
R v Weldon [2002] 136 A Crim R 55
R v Wilson [2005] NSWCCA 219
Veen v The Queen [No 2] (1987-1988) 164 CLR 465

PARTIES: Applicant - Stanislas Kanengele-Yondjo
Respondent - Regina

FILE NUMBER(S): CCA 2006/1382

COUNSEL: Applicant - Mr J. Stratton SC
Respondent - Ms D. Woodburne

SOLICITORS: Applicant - Legal Aid Commission of New South Wales
Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/1025

LOWER COURT JUDICIAL OFFICER: Andrew DCJ

LOWER COURT DATE OF DECISION: 2 December 2005

- 1 -

2006/1382

McCLELLAN CJ at CL
SULLY J
HISLOP J
16 November 2006

Stanislas Kanengele-Yondjo v REGINA

Judgment

The order previously made suppressing the publication of the names of the victims is continued.

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

2 SULLY J: I agree with Hislop J.

HISLOP J:

3 The applicant was born on 22 December 1963 in the Democratic Republic of the Congo. He was educated to matriculation level and attended University where he completed two years of a degree in Industry Sociology. He has five children from four relationships. He came to Australia in April 1993. He has been employed in Australia as a printer’s assistant, a storeman and a security officer. He has convictions for matters of dishonesty in Australia. In 1997 he was placed on a two year good behaviour bond for obtaining financial benefit by deception. In 2003 he was sentenced to 12 months imprisonment for fraud. In 2004 he was sentenced to 12 months imprisonment for obtaining money by deception, receiving, and larceny as a clerk. He also had a conviction for stealing in 1997. He was on bail at the time of the commission of the offences the subject of this application.

4 On 8 February 2005 the applicant pleaded guilty at Penrith Local Court to the following charges:

1. Between 8am on 1 January…

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 Kanengele-Yondjo v Regina

Details

AGLC: Kanengele-Yondjo v Regina [2006] NSWCCA 354
Case: [2006] NSWCCA 354
Decision Date: 16 November 2006

CaseChat Overview and Summary

The case before the court involved Kanengele-Yondjo, the appellant, and Regina, the respondent. The primary dispute centred on the sentencing of Kanengele-Yondjo, who was convicted of maliciously inflicting grievous bodily harm by infecting others with the HIV virus. The matter was heard in the highest court in Australia. The court was required to determine the appropriate sentence for the appellant, taking into account the gravity of the crime and the mitigating factors presented.

The legal issues that the court needed to address included the severity of the crime and the appropriate discount for the plea of guilty. The court also had to consider the principle of totality, which involves ensuring that the total sentence for all offences is proportionate to the overall criminality of the offender. The appellant argued that the sentence was manifestly excessive, while the respondent maintained that the sentence was appropriate given the nature of the crime.

The court found that the appellant's actions were of the utmost gravity, and that the discount for the plea of guilty should be minimal. The court further held that the sentence was proportionate to the overall criminality of the offender, taking into account the totality principle. The court found that the sentence was not manifestly excessive, and therefore dismissed the appeal. The order previously made suppressing the publication of the names of the victims was continued, in line with the court's commitment to protecting the privacy and dignity of the victims.

In conclusion, the court upheld the sentence imposed on the appellant, finding it to be appropriate and proportionate to the gravity of the crime. The court's decision emphasised the importance of protecting the victims and ensuring that the sentence reflects the overall criminality of the offender. The order suppressing the publication of the victims' names was also continued, demonstrating the court's commitment to upholding the rights and dignity of those affected by the crime.

Orders