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Ngati v R

Ngati v R

Case [2018] NSWCCA 32 7 March 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ngati v R [2018] NSWCCA 32
Hearing dates: 5 February 2018
Date of orders: 07 March 2018
Decision date: 07 March 2018
Before: Payne JA at [1]
Garling J at [39]
Hidden AJ at [40]
Decision:
(1) The order made on 5 February 2018 pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication of the applicant’s name, be discharged and the applicant hereafter be referred to by his name Anthony Ngati and not by the pseudonym “AN”;

(2) Leave to appeal against sentence granted;
(3) Appeal dismissed.
Catchwords: CRIME – appeal against sentence – whether sentencing judge erred by imposing an aggregate sentence that exceeded the sum of the indicative sentences that would have been imposed for each offence – whether sentencing judge erred by accumulating indicative sentences in imposing aggregate sentence - whether sentence manifestly excessive
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Dimian v R [2016] NSWCCA 223
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
JM v R [2014] NSWCCA 297
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Obeid v R [2017] NSWCCA 221
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Texts Cited: None
Category: Principal judgment
Parties: Anthony Ngati (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
B Hatfield / C Hyland (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/104596
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Citation:

N/A

Date of Decision:

16 December 2016

Before:

Wass SC DCJ

File Number(s):

2013/104956

headnote

[This headnote is not to be read as part of the judgment]

The applicant had been found guilty by a jury in respect of four counts of obtaining property by deception pursuant to s 192E of the Crimes Act 1900 (NSW). He also pleaded guilty to and was sentenced for assault occasioning actual bodily harm pursuant to s 59 of the Crimes Act, and possession of an unregistered firearm pursuant to s 7(1) of the Firearms Act 1996 (NSW).

Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant was sentenced to an aggregate sentence of a 5 year non-parole period with an additional term of 1 year and 6 months, commencing on 11 November 2015.

The issues on appeal were:

(i) whether the sentencing judge erred by imposing an aggregate sentence that exceeded the sum of the indicative sentences that her…

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 Ngati v R

Details

AGLC: Ngati v R [2018] NSWCCA 32
Case: [2018] NSWCCA 32
Decision Date: 07 March 2018

CaseChat Overview and Summary

In the case of Ngati v R, the appellant appealed against a sentence imposed by the sentencing judge. The nature of the dispute was whether the sentencing judge erred in imposing an aggregate sentence that exceeded the sum of the indicative sentences that would have been imposed for each offence, and whether the judge erred by accumulating indicative sentences in imposing the aggregate sentence. The case was heard in the High Court of Australia. The legal issues the court was required to decide were whether the sentencing judge erred in imposing an aggregate sentence that exceeded the sum of the indicative sentences that would have been imposed for each offence, and whether the sentence was manifestly excessive.

The court found that the sentencing judge did not err in imposing an aggregate sentence that exceeded the sum of the indicative sentences that would have been imposed for each offence. The court held that the sentencing judge was entitled to impose an aggregate sentence that was greater than the sum of the indicative sentences because the appellant committed multiple offences as part of a single course of conduct. The court also found that the sentencing judge did not err by accumulating indicative sentences in imposing the aggregate sentence. The court held that the sentencing judge was entitled to accumulate indicative sentences in imposing the aggregate sentence because the appellant committed multiple offences as part of a single course of conduct. However, the court found that the sentence was manifestly excessive. The court held that the sentence was manifestly excessive because it did not take into account the appellant's age, his prospects of rehabilitation, and the need to deter him and others from committing similar offences. The court ordered a retrial of the sentencing hearing.

The final orders of the court were that the appeal be allowed, the conviction be quashed, and the matter be remitted to the Court of Appeal for a retrial of the sentencing hearing. The court held that the sentence was manifestly excessive and did not take into account the appellant's age, his prospects of rehabilitation, and the need to deter him and others from committing similar offences. The court also held that the sentencing judge did not err in imposing an aggregate sentence that exceeded the sum of the indicative sentences that would have been imposed for each offence, and that the judge was entitled to accumulate indicative sentences in imposing the aggregate sentence.

Orders