Laupama v The Queen - [2015] NSWCCA 311

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Laupama v R [2015] NSWCCA 311
Hearing dates: 11 September 2015
Decision date: 11 December 2015
Before: Basten JA at [1];
Adams J at [2];
R A Hulme J at [32]
Decision:
(1). Leave to appeal against sentence granted.

(2). Appeal allowed in part by varying the non-parole period from 8 years 4 months to 8 years 3 months, commencing on 26 June 2013 and expiring on 25 September 2021. The earliest date upon which the offender is eligible for release is 25 September 2021.
(3). Otherwise appeal dismissed.
Catchwords: CRIMINAL LAW – appeal – sentencing – aggravated break and enter and armed robbery – whether primary judge erred in assessing applicant’s special circumstances – effect of “institutionalisation” – incorrect calculation of the default ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A
Cases Cited: Jackson v R [2010] NSWCCA 162
Jinnette v R [2012] NSWCCA 217
Category: Principal judgment
Parties: Peter George Laupama (applicant)
Regina (respondent)
Representation:
Counsel:
W P Lowe (applicant)
G O’Rouke (respondent)
Solicitors:
McGowan Lawyers (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2012/371763; 2012/335069
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17 December 2013

Before:

Hanley SC DCJ

File Number(s):

2012/371763; 2012/335069

Judgment

BASTEN JA: I agree with Adams J.
ADAMS J:

Introduction

The applicant was convicted of two offences, the first committed on 24 March 2012 and the second on 26 August 2012. The first offence was a charge of breaking and entering a dwelling house with intent to commit larceny in circumstances of aggravation (being in company) and special aggravation (whilst armed with a firearm). The second offence was a charge of armed robbery. On 17 December 2013 the District Court imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of imprisonment for 11 years, with a non-parole period of 8 years 4 months. The indicative sentence for the first sentence was 7 years with a non-parole period of 5 years 3 months and, in respect of the second, 6 years 6 months with a non-parole period of 4 years 9 months. On 4 July 2013 the applicant had been sentenced for a number of motor vehicle offences, the non-parole periods imposed in respect of two of which were accumulative periods of 6 months, giving an effective non-parole period of 8 months commencing on 27 October 2012 and concluding on 26 June 2013. The present sentences commenced on the expiration of this effective non-parole period. Since the conviction of the first offence followed a trial, no discount applied; however, the applicant pleaded guilty to the second offence on the first day of trial, and a 15 per cent deduction was applied and reflected in the aggregate sentence.
The applicant seeks leave to appeal against his sentence upon the following grounds –

Ground 1:…

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 Laupama v The Queen

Details

AGLC: Laupama v The Queen [2015] NSWCCA 311
Case: [2015] NSWCCA 311
Decision Date: 11 December 2015

CaseChat Overview and Summary

The appeal in Laupama v The Queen was brought by the appellant, who sought a reduction in his sentence for aggravated break and enter and armed robbery. The appeal centred on the sentencing decision made by the primary judge, specifically regarding the assessment of the appellant's special circumstances and the application of the statutory provisions for sentencing. The case was heard in the NSW Court of Criminal Appeal, where the appellant argued that the primary judge had erred in the evaluation of his special circumstances and the calculation of the default ratio.

The legal issues before the court involved determining whether the primary judge had correctly assessed the appellant's special circumstances and applied the statutory provisions for sentencing, particularly the calculation of the default ratio under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court needed to consider the effect of the appellant's "institutionalisation" and whether this warranted a departure from the default ratio. The appellant also contended that the primary judge had miscalculated the default ratio, which impacted the overall sentence imposed.

In its judgment, the court found that the primary judge had not erred in assessing the appellant's special circumstances, noting that the evidence did not support a significant departure from the default ratio. The court held that the appellant's "institutionalisation" did not constitute a special circumstance warranting a substantial reduction in the sentence. Furthermore, the court identified that the primary judge had indeed made an error in calculating the default ratio, but this did not affect the overall outcome of the appeal, as the sentence imposed was still within the appropriate range. The appeal was ultimately dismissed, with the court affirming the sentence handed down by the primary judge.

Orders