Manowa Mkandawire v The Queen

[2004] ACTCA 7

MANOWA MKANDAWIRE v THE QUEEN [2004] ACTCA 7 (16 February 2004)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 24 - 2003
No. SCC 62 of 2003

Judges:         Crispin P, Gray and Gyles JJ
Court of Appeal of the Australian Capital Territory
Date:            16 February 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 24 - 2003
  )          No. SCC 62 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MANOWA MKANDAWIRE

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Crispin P, Gray and Gyles JJ
Date:  16 February 2004
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be allowed, the head sentence be confirmed, and the non-parole period be varied so that it will now expire on 14 May 2004.

IN THE SUPREME COURT OF THE       )          No. ACTCA 24 - 2003
  )          No. SCC 62 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MANOWA MKANDAWIRE

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray and Gyles JJ
Date:  16 February 2004
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. As explained during argument, an appellate court does not interfere with a sentence merely because of the view that it is insufficient or excessive.  It interferes only if some error of fact or principle is demonstrated or if, in the absence of such a discernible error, it is clear that the severity of the sentence, or the leniency of the sentence, was so disproportionate to the offence as to fall outside the range of discretion reasonably available to the sentencing judge.

1. Subject to an arithmetical error apparently made by his Honour, I am unable to discern any error of principle and I see no reason for departing from the approach which his Honour took.  However, it does appear that his Honour was of the opinion that the appellant should serve an effective non-parole period of 12 months but that in calculating the date upon which that period would expire, having regard to periods already served in custody and a period still to be served for unconnected offences, his Honour made an arithmetical error.  Consequently, his Honour ordered that the non-parole period expire on 24 May 2004 when, in fact, it should have been 14 May 2004. 

1. I would allow the appeal to the extent of varying the non-parole period so that it would expire on the earlier date, but I would otherwise dismiss the appeal.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of President Crispin.

Associate:
30 April 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 24 - 2003
  )          No. SCC 62 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MANOWA MKANDAWIRE

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray and Gyles JJ
Date:  16 February 2004
Place:  Canberra

REASONS FOR JUDGMENT

GRAY J:

1. I agree.

I certify that the preceding paragraph numbered four (4) is a true copy of the Reasons for Judgment herein of Justice Gray.

Associate:

Date:     30 April 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 24 - 2003
  )          No. SCC 62 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MANOWA MKANDAWIRE

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray and Gyles JJ
Date:  16 February 2004
Place:  Canberra

REASONS FOR JUDGMENT

GYLES J:

1. I agree.

   I certify that the preceding paragraph numbered five (5) is a true copy of the Reasons for Judgment herein of Justice Gyles.

   Associate:
   Date:     30 April 2004

Counsel for the Appellant:  Self represented

Counsel for the Respondent:  Mr R Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  16 February 2004
Date of judgment:  16 February 2004