Muliaga v The Queen - [2008] NSWCCA 342

New South Wales
Court of Criminal Appeal

CITATION: Muliaga v R [2008] NSWCCA 342

HEARING DATE(S): 28 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 15; McCallum J at 16

EX TEMPORE JUDGMENT DATE: 28 October 2008

DECISION: Grant leave to appeal but dismiss the appeal.

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
Veen v R (No 2) (1988) 164 CLR 465

PARTIES: Ian Muliaga (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/5388

COUNSEL: C T Loukas (Applicant)
V Lydiard (Crown)

SOLICITORS: Shopfront Youth Legal Centre (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3121

LOWER COURT JUDICIAL OFFICER: Christie DCJ

LOWER COURT DATE OF DECISION: 20 November 2007

2007/5388

McCLELLAN CJ at CL
SIMPSON J
McCALLUM J
TUESDAY 28 OCTOBER 2008

MULIAGA, Ian Peter v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count of armed robbery contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment. He seeks leave to appeal against his sentence.

2 The offence occurred at about 9 pm on 23 November 2006 when the applicant, accompanied by two other men, robbed the McDonald’s restaurant at Villawood. At the time there were approximately 15 people present including customers, staff and the night manager.

3 At the time the applicant was wearing sunglasses and carrying a 30cm long knife. His accomplices were disguised and one of them was carrying a garden-type implement capable of being used as a weapon. The applicant and the man carrying the implement, having entered the premises, demanded that all present get onto the ground and that the cash drawer be opened. The applicant then jumped over the counter while another man dragged a female employee towards the drive-in window and demanded that she open the till. One of the co-offenders struck the night manager with the garden implement. The offenders took $900. Having taken the money the applicant and the other offenders ran from the premises.

4 The applicant was born on 18 January 1984 and was aged 22 years at the date of the offence. He is in a relationship and has three children, the youngest of whom has cerebral palsy. The applicant was assaulted in 2003 and has been left with a mental disability. As a consequence, the sentencing judge found that the Crown conceded that less weight should be given to matters of general deterrence. His Honour also found that the ingestion of illicit substances played a part in the commission of the offence. During the period leading up to the offence the applicant had consumed one to one and a half bottles of Jim Beam bourbon and apparently smoked some ice. If this report was accurate Mr Champion, a clinical psychologist, believed that the applicant may have been agitated and disinhibited by the drugs he had ingested.

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 Muliaga v The Queen

Details

AGLC: Muliaga v The Queen [2008] NSWCCA 342
Case: [2008] NSWCCA 342
Decision Date: 28 October 2008

CaseChat Overview and Summary

The New South Wales Court of Criminal Appeal heard an appeal brought by Ian Muliaga against the sentence imposed by the District Court. Muliaga was found guilty of armed robbery, an offence under section 97(1) of the Crimes Act 1900, and he sought leave to appeal against the sentence. The maximum penalty for this offence is 20 years imprisonment. The appeal was heard by McClellan CJ at CL, Simpson J, and McCallum J, who all agreed on the outcome. The Court granted leave to appeal but ultimately dismissed the appeal.

The central legal issues in this appeal were whether the starting point for the sentence was correctly determined by the sentencing judge, and whether the sentence imposed was manifestly excessive. The appeal hinged on the sentencing judge's assessment of the appropriate sentence for armed robbery, considering the guidelines set by previous cases, and whether the sentence adequately reflected the principles of retribution, deterrence, and protection of society.

The Court of Criminal Appeal examined the sentencing judge's decision and concluded that while the starting point for the sentence was higher than suggested by previous cases, it was justified due to Muliaga's significant criminal history and the nature of the offence. The Court found that the sentencing judge correctly considered the factors of retribution, deterrence, and protection of society, which warranted a more severe penalty. The Court also determined that the sentence imposed was within the appropriate range and did not find it to be manifestly excessive. As a result, the appeal was dismissed.

Orders