Miringaorangi v The Queen - [2006] NSWCCA 397

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: MIRINGAORANGI v R [2006] NSWCCA 397

FILE NUMBER(S):
2006/792

HEARING DATE(S): 20 July 2006

DECISION DATE: 20/07/2006

PARTIES:
Regina
Thomas Miringaorangi

JUDGMENT OF: McClellan CJ at CL Hulme J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1118

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:
Crown: P Barrett
Applicant: D Carroll

SOLICITORS:
Crown: S Kavanagh
Applicant: S O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

- 7 -

IN THE COURT OF
CRIMINAL APPEAL

2006/792
McCLELLAN CJ at CL
HULME J
HALL J
Thursday, 20 July 2006

Thomas MIRINGAORANGI v R

Judgment

McCLELLAN CJ AT CL: I agree with Hulme J.
HULME J: On 15 August 2005 Judge English sentenced the applicant to three offences, he having pleaded guilty to each of them on 24 February 2005.
The charges to which the applicant pleaded guilty, the statutory provision under which they arise, and the maximum penalties prescribed are as follows:
Count 1: On 23 July 2001, in circumstances of aggravation, viz. being in company, he broke and entered a dwelling house and committed a serious indictable offence therein, namely detained Mark Whyte without his consent with the intention of obtaining an advantage to himself - Crimes Act, s112(2) - 20 years imprisonment.
Count 2: On 23 July 2001, in circumstances of aggravation, viz. being in company, he broke and entered and committed a serious indictable offence therein, namely detained Amanda Whyte without her consent with the intention of obtaining an advantage to himself - Crime Act, s112(2) - 20 years imprisonment.
Count 3: On 23 July 2001, while being in company he robbed Mark Whyte - Crimes Act s97(1) - 20 years imprisonment.
Taken into account in connection with the third of these offences were two offences on a Form 1. The first was obtaining a financial benefit by deception and the second was an attempt to obtain a financial benefit by deception. The first offence was constituted by, on 23 July 2001, withdrawing $1,000 cash from Mrs Whyte’s bank account, using a keycard the offenders had stolen and PIN number they had obtained and the second by, on the following day, attempting to obtain more money in the same manner.
The sentences imposed by her Honour in respect of these offences were, respectively:
Count 1: Imprisonment for six years including a non-parole period of four years commencing on 3 January 2005.
Count 2: Imprisonment for six years including a non-parole period of four years commencing on 3 January 2005.
Count 3: Imprisonment for a fixed term of three years and nine months commencing on 3 January 2005.
In the result the three sentences were all wholly concurrent, with the sentence on count 3, which took into account the Form 1 matters, wholly subsumed by the sentences on Counts 1 and 2.
The sole ground of appeal is Her Honour erred in commencing the sentences from 3 January 2005 in that she failed to…

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 Miringaorangi v The Queen

Details

AGLC: Miringaorangi v The Queen [2006] NSWCCA 397
Case: [2006] NSWCCA 397
Decision Date: 20 July 2006

CaseChat Overview and Summary

The appellant, Miringaorangi, was convicted for his involvement in a home invasion that occurred on 23 July 2001. The crime involved the appellant and an unidentified co-offender entering the home of Mr and Mrs Whyte, threatening them with knives, binding them with tape, and stealing items including the victims' wedding rings, a digital camera, car keys, and $1,000 from Mrs Whyte’s bank account. The appellant was arrested on 11 November 2003 and again on 13 October 2004 for breaching bail conditions. He was sentenced on 15 August 2005. The appeal concerns the calculation of the pre-sentence custody time, which is critical for the commencement date of the sentences under s47 of the Crimes (Sentencing Procedure) Act.

The court was required to determine whether the sentencing judge accurately accounted for the time the appellant spent in custody before his sentencing. The appellant argued that the sentences should commence from 3 January 2005, while the Crown submitted that the sentences should start from 22 June 2004. The court had to reconcile these dates with the accurate calculation of the appellant's pre-sentence custody, which was contested and miscalculated by both parties at various points in the case. The court's task was to ensure the sentence accurately reflected the statutory requirements and the appellant's time spent in custody.

The court found that the sentencing judge intended to give effect to the time spent in custody but miscalculated the dates. It was clarified that the appellant was in custody for a total of 450 days, not 420 as initially submitted by the appellant's counsel. The court corrected the commencement date of the sentences to 23 May 2004, aligning with the accurate calculation of the pre-sentence custody. The court concluded that the sentencing judge's intention to account for the time spent in custody was evident, but the miscalculation led to an incorrect backdating of the sentence commencement date.

The court ordered that the sentences should commence from 23 May 2004, reflecting the accurate calculation of the appellant's pre-sentence custody. This adjustment was necessary to ensure the sentences complied with the statutory requirements and accurately reflected the appellant's time spent in custody.

Orders

Orders of the court

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Background

Background to the litigation

The sole ground of appeal is Her Honour erred in commencing the sentences from 3 January 2005 in that she failed to accurately take into account the time spent in custody prior to sentence.The facts In passing sentence her Honour referred to a set of agreed facts which had become part of Exhibit A. In summary they are as follows. At about 10.00 pm on 23 July 2001 Mr and Mrs Whyte were eating dinner and watching a video in their home when they heard a rear sliding door open. The applicant and an unidentified co-offender, both wearing balaclavas and brandishing knives told the victims to “get up but stay quiet”. The intruders then grabbed the victims from behind, holding a knife close to Mrs Whyte’s face. They led the victims to a computer room and there bound both victims’ hands behind their backs with tape and taped over Mrs Whyte’s mouth. The offenders demanded money and were told by Mrs Whyte that her purse and wedding rings were in the kitchen and that more money was in the bedroom. The co-offender disappeared briefly while the applicant bound both victims’ legs together with tape. On returning the co-offender demanded, and was given, both victims’ PIN numbers. He told them he was going to check the PIN numbers and that the applicant would be watching while he was gone. The light was turned off and the offenders left the room. A short time later, with his wife’s assistance, Mr Whyte freed his legs and looked around the house. Finding the offenders gone he removed the remaining tape from himself and freed his wife. Police were then called. Mr Whyte’s vehicle, wedding rings, a digital camera and car keys had been stolen. Stolen also was $1,000 from Mrs Whyte’s bank account using her keycard and PIN number via an ATM. The applicant was arrested a little over two years later on 11 November 2003, on the basis of DNA material obtained from a balaclava located in Mr Whyte’s car, which had been located near to where the withdrawal from Mrs Whyte’s account had been made.The ground of appeal It is accepted by the Crown that this ground is made out. It clearly is. It is common ground that the applicant was arrested and bail refused on 11 November 2003 and that he stayed in custody referable to these offences until he entered upon bail on 1 April 2004. He was therefore in custody for 143 days. He was again arrested on 13 October 2004, having breached his bail. He remained in custody until sentenced on 15 August 2005. This period of custody the written submissions filed on the applicant’s behalf calculated as 277 days where clearly it was 307 days. This was pointed out in written submissions filed for the Crown and takes the pre-sentence custody to 450 days, not 420 as submitted on behalf of the applicant. During the hearing before us the applicant’s counsel agreed with this calculation. In her remarks on sentence Judge English said that “The sentences have been backdated to take account the time spent in custody”. However, it is clear that, sentencing the applicant on 15 August 2005 and only backdating the commencing date of the sentences to 3 January 2005, her Honour failed in significant degree to give effect to what she intended and what s47 of the Crimes (Sentencing Procedure) Act contemplates. It was submitted on behalf of the applicant that the commencement should have been 22 June 2004, although given the miscalculation to which the Crown adverted, 23 May 2004 is the correctly calculated date.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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