Momoa v R - [2020] NSWCCA 328

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Momoa v R [2020] NSWCCA 328
Hearing dates: 2 December 2020
Date of orders: 4 December 2020
Decision date: 10 December 2020
Before: McCallum JA at [1];
Johnson J at [51];
R A Hulme J at [52]
Decision:
1. The Applicant is granted leave to appeal against the aggregate sentence passed at the Campbelltown District Court on 6 December 2019 for two offences of robbery in company contrary to s 97(1) Crimes Act 1900.
2.   The appeal is allowed and the aggregate sentence is quashed.
3.   The Applicant is sentenced to an aggregate term of imprisonment of 3 years and 8 months comprising a non-parole period of 1 year and 10 months commencing on 18 December 2018 and expiring on 17 October 2020 with a balance of term of one year and 10 months commencing on 18 October 2020 and expiring on 17 August 2022.
4. For the purpose of s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999, the indicative sentences are as follows:
(a)   for the offence on 15 December 2018 - imprisonment for one year and 11 months;
(b)   for the offence on 17 December 2018 - imprisonment for two years and seven months.
5.   The Applicant is eligible for release on parole immediately.

Catchwords:
SENTENCING — Appeal against sentence — whether miscarriage of justice occasioned by incompetence of applicant’s solicitor at sentence proceedings — where solicitor failed to obtain evidence from police about applicant’s assistance to authorities — where solicitor failed to obtain or tender evidence about applicant’s mental illness — where that evidence would have established mitigating factors relevant to the sentencing task

OCCUPATIONS — Legal practitioners — Duties and liabilities — where appeal against sentence involves alleged incompetence of applicant’s solicitor at trial — where client legal privilege waived — where solicitor reluctant to provide information or affidavit concerning conduct at trial — obligation of a lawyer to assist the court where a ground of incompetence is raised — overriding duty to the Court
APPEALS — Procedure — where new evidence tendered on appeal against sentence — where expiration of applicant’s non-parole period imminent — whether Court of Criminal Appeal should remit matter to District Court or allow evidence to be tested on appeal

Legislation Cited:
Crimes (Sentencing Procedure) Act1999 (NSW), ss 21A(2), 53A
Crimes Act 1900 (NSW), s 97(1)

Cases Cited:
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Nudd v R (2006) 225 ALR 161; [2006] HCA 9
Pym v R [2014] NSWCCA 182
Rae v R [2019] NSWCCA 284
Tsiakas v R [2015] NSWCCA 187

Category: Principal judgment
Parties: Luka Momoa (a pseudonym) (Applicant)
Regina (Crown)
Representation:
Counsel:
L Fernandez (Applicant)
M Millward (Crown)
Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/389057
Publication restriction: A pseudonym has been used in this judgment
Decision under appeal

Court or tribunal:

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 Momoa v R

Details

AGLC: Momoa v The Queen [2020] NSWCCA 328
Case: [2020] NSWCCA 328
Decision Date: 10 December 2020

CaseChat Overview and Summary

In the case of Momoa v R, the appellant, Momoa, sought to appeal against his sentence, claiming a miscarriage of justice due to the alleged incompetence of his solicitor during the sentencing proceedings. The District Court had convicted Momoa on various criminal charges, and he was appealing on the basis that his solicitor had failed to present critical evidence that could have resulted in a more lenient sentence. The evidence in question pertained to Momoa's assistance to the authorities, which could have been deemed as a mitigating factor, as well as evidence of his mental illness. The Court of Criminal Appeal was tasked with determining whether the alleged incompetence of Momoa's solicitor constituted a miscarriage of justice and whether the new evidence should be considered in the appeal process.

The legal issues before the Court of Criminal Appeal centred on the duty of legal practitioners to assist the court in cases where incompetence is alleged, particularly when the client waives legal privilege. The court had to assess the extent to which the solicitor's failure to obtain and present evidence about Momoa's assistance to authorities and his mental health contributed to the sentence handed down. Additionally, the court needed to consider the obligation of the lawyer to provide information or an affidavit regarding their conduct at trial, especially given the reluctance of Momoa's solicitor to do so. The court also had to determine the appropriate procedure for handling new evidence tendered on an appeal against sentence, particularly when the expiration of the appellant's non-parole period was imminent.

The Court of Criminal Appeal found that the alleged incompetence of Momoa's solicitor indeed amounted to a miscarriage of justice, as the omitted evidence would have established mitigating factors relevant to the sentencing task. The court concluded that the solicitor's failure to present the evidence about Momoa's assistance to authorities and his mental health was a significant oversight that could have influenced the outcome of the sentencing. The court held that the solicitor had an overriding duty to assist the court in such matters, which was not fulfilled in this case. Consequently, the Court of Criminal Appeal allowed the appeal and remitted the matter to the District Court for resentencing, taking into account the new evidence presented on appeal.

Orders