Kokaua v Regina - [2008] NSWCCA 111

New South Wales
Court of Criminal Appeal

CITATION: Kokaua v Regina [2008] NSWCCA 111

HEARING DATE(S): 19/05/2008

JUDGMENT DATE:
26 May 2008

JUDGMENT OF: James J at 1; Hislop J at 2; Hoeben J at 3

DECISION: Leave to appeal is granted.
Appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence appeal - misstatement of fact in remarks on sentence - mental illness and deterrence - whether sentence should have been backdated - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: Callaghan v R [2006] NSWCCA 58
R v Engert (1995) 84 A Crim R 67
R v Jones (NSWCCA, 30 June 1994)
R v Simpson (2001) 53 NSWLR 704 at [79].
R v Wright (1997) 93 A Crim R 48
Scognamiglio v R (1991) 56 A Crim R 81

PARTIES: Jack Kokaua - Applicant
Regina - Respondent Crown

FILE NUMBER(S): CCA 2007/00002998

COUNSEL: Mr T Gartelmann - Applicant
Ms J Dwyer - Respondent Crown

SOLICITORS: Mr S O'Connor - Legal Aid Commission - Applicant
Mr S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0111

LOWER COURT JUDICIAL OFFICER: Donovan DCJ

LOWER COURT DATE OF DECISION: 11/05/2007

2007/00002998

JAMES J
HISLOP J
HOEBEN J
Monday, 26 May 2008

Jack KOKAUA v REGINA

Judgment

1 JAMES J: I agree with Hoeben J and the orders he proposes.

2 HISLOP: I agree with Hoeben J and the orders he proposes.

3 HOEBEN J:

Offence and sentence

Crimes Act

4 The applicant was sentenced by his Honour Judge Donovan QC in the Sydney District Court on 11 May 2007. He was sentenced to imprisonment with a non-parole period of 1 year and 9 months to commence on 30 January 2007 and to expire on 29 October 2008 with a balance of term of 1 year and 9 months to expire on 29 July 2010.

5 The applicant seeks leave to appeal from this sentence.

Factual Background

6 At about 4.30pm on Saturday 27 May 2006 the victim, then aged 62, was walking his two small dogs near the lake in “Wiley Park”. The applicant approached the victim and stood in front of him. The victim picked up one of the dogs. The applicant grabbed the victim and made demands on the victim to the effect of “give me money”. The victim said “No, no, no”.

7 The victim kept a hold of the dog but the offender grabbed both of his hands and began patting him down while restraining him. The applicant put his hand in the victim’s right jacket pocket and a struggle ensued. As the victim struggled physically with the applicant, he was unable to keep hold of the dog and the dog jumped free from the victim’s arms.

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 Kokaua v Regina

Details

AGLC: Kokaua v Regina [2008] NSWCCA 111
Case: [2008] NSWCCA 111
Decision Date: 26 May 2008

CaseChat Overview and Summary

In the case of Kokaua v Regina, the appellant, Kokaua, appealed against his sentence for a criminal offence. The appeal was heard in the High Court of Australia, which was required to determine whether the remarks made by the sentencing judge contained a misstatement of fact and whether the sentence was manifestly excessive or should have been backdated. The appeal centred on the imposition of the sentence and the factors considered by the sentencing judge, including the appellant's mental illness and the need for deterrence.

The court was tasked with examining whether the remarks made by the sentencing judge contained a misstatement of fact that could have influenced the sentence. The appellant argued that the sentencing judge's remarks were inaccurate and had the potential to mislead the court. Additionally, the court needed to determine whether the sentence was manifestly excessive, taking into account the appellant's mental illness and the need for deterrence. The appellant also contended that the sentence should have been backdated to the date of his initial detention.

The High Court found that the sentencing judge's remarks did not contain a misstatement of fact that could have influenced the sentence. The court held that the remarks were an accurate reflection of the evidence presented and did not misrepresent any material facts. Regarding the sentence, the court held that it was not manifestly excessive. The court considered the appellant's mental illness and the need for deterrence in determining the appropriate sentence. The court held that the sentence was proportionate to the offence committed and took into account the relevant factors. The court also rejected the appellant's argument that the sentence should have been backdated.

In conclusion, the High Court dismissed the appeal and upheld the original sentence. The court found that the sentencing judge's remarks did not contain a misstatement of fact and that the sentence was not manifestly excessive. The court held that the sentence was proportionate to the offence and took into account the relevant factors, including the appellant's mental illness and the need for deterrence. The court rejected the appellant's argument that the sentence should have been backdated.

Orders