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Ngatamariki v R

Ngatamariki v R

Case [2016] NSWCCA 155 9 August 2016

Appeal

Sentencing

Grievous bodily harm with intent

Consistency of application of sentencing principles

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Ngatamariki v R [2016] NSWCCA 155
Hearing dates: 26 July 2016
Date of orders: 09 August 2016
Decision date: 09 August 2016
Before: Hoeben CJ at CL at [1]
Hall J at [2]
Bellew J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Appeal – Sentence – Grievous bodily harm with intent – Assault by applicant upon his partner – Whether sentencing judge took into account the applicant’s prior conviction when assessing the objective seriousness of his offending – Whether sentence manifestly excessive – Brutal attack committed at a time when the applicant was affected by alcohol – No error on the part of the sentencing judge – Sentence not manifestly excessive
CRIMINAL LAW – Sentence – Use of sentences imposed in other cases to determine whether a sentence is manifestly excessive – Need to ensure consistency of application of sentencing principles as opposed to numerical equivalence of sentences
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 253 CLR 58
Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Briouzguine v R [2014] NSWCCA 264
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
MLP v R [2014] NSWCCA 183
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
Newman v R [2015] NSWCCA 270
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Principal judgment
Parties: George Michael Ngatamariki – Applicant
Regina - Respondent
Representation:
Counsel:
Ms J Painakulam – Applicant
Ms S Dowling SC – Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions (NSW) – Crown

File Number(s): 2014/99078004
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

28 August 2015

Before:

Hanley SC DCJ

Judgment

HOEBEN CJ at CL: I agree with Bellew J.
HALL J: I agree with the orders proposed by Bellew J.
BELLEW J: On 21 May 2015 an indictment was presented against George Michael Ngatamariki (“the applicant”) in the District Court of NSW containing the following two counts:

“1. On or about 2 April 2014 at Ashford in the State of New South Wales caused grievous bodily harm to Deborah Lavender with intent to cause grievous bodily harm to Deborah Lavender.
2. On or about 2 April 2014 at Ashford in the State of New South Wales did cause grievous bodily harm to Deborah Lavender and was reckless as to causing actual bodily harm to Deborah Lavender”.

The applicant entered a plea of not guilty to the first count. His…

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 Ngatamariki v R

Details

AGLC: Ngatamariki v R [2016] NSWCCA 155
Case: [2016] NSWCCA 155
Decision Date: 09 August 2016

CaseChat Overview and Summary

The appeal in Ngatamariki v R was brought forth by the applicant, who was convicted for committing grievous bodily harm with intent upon his partner. The court of appeal was tasked with examining whether the sentencing judge had correctly considered the applicant's prior conviction when assessing the objective seriousness of his offence and whether the imposed sentence was manifestly excessive. The applicant argued that his prior conviction should not have been considered in determining the severity of his current sentence and that the sentence handed down was excessively harsh.

The central legal issue before the court was whether the sentencing judge erred in failing to adequately consider the applicant's prior conviction and whether the sentence was manifestly excessive. The court was also required to consider the appropriate way to use sentences imposed in other cases to determine if a sentence was manifestly excessive, focusing on the consistency of the application of sentencing principles rather than merely comparing numerical values of sentences.

The court held that there was no error on the part of the sentencing judge in considering the applicant's prior conviction when assessing the objective seriousness of his offence. The court further found that the sentence was not manifestly excessive, given the brutal nature of the attack and the fact that the applicant was affected by alcohol at the time. The court emphasised that the consistency of the application of sentencing principles should be the primary focus when comparing sentences, rather than merely looking at numerical equivalence. The court ultimately dismissed the appeal, maintaining the original sentence imposed by the sentencing judge.

Orders