Legal Research
Cases
Ngati v R

Ngati v R

Case [2014] NSWCCA 125 10 July 2014

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: NGATI, John Walsh v R [2014] NSWCCA 125
Hearing dates: 24 June 2014
Decision date: 10 July 2014
Before: Hoeben CJ at CL at [1]
Rothman J at [2]
Beech-Jones J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: SENTENCING - robbery in company with wounding - offender with intelligence in the "low extreme range" - whether moral culpability affected - findings of sentencing judge addressed offender's criminal culpability - no error established.
Legislation Cited: - Crimes Act 1900 (NSW), s 86, s 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32, s 53A
Cases Cited: - Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Elturk v R [2014] NSWCCA 61
- McLaren v R [2012] NSWCCA 284
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Category: Principal judgment
Parties: John Walsh Ngati (Appellant)
Crown (Respondent)
Representation: Counsel:
D. Barrow (Applicant)
R.A. Herps (Respondent)
Solicitors:
Takchi & Associates Solicitors (Applicant)
S. Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/174209
Decision under appeal

Date of Decision:

2013-05-27 00:00:00

Before:

His Honour Judge Marien SC

File Number(s):

2011/174209

Judgment

HOEBEN CJ at CL: I agree with Beech-Jones J.

ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Beech-Jones J. I agree with those reasons and with the orders proposed by his Honour.

BEECH-JONES J: This is an application for leave to appeal from an aggregate sentence imposed by the District Court for two offences of armed robbery in company under s 97(1) of the Crimes Act 1900 (NSW). They were committed on 19 April 2011 and 5 May 2011 respectively. The maximum sentence for an offence under s 97(1) is twenty years imprisonment. Associated with each offence were two additional charges which were dealt with in accordance with the procedure set out in s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act") (ie a "Form 1").

In accordance with s 53A(1) of the Sentencing Act, his Honour imposed an aggregate sentence for both offences of twelve years imprisonment commencing on 23 November 2012 and expiring on 22 November 2024. It is unnecessary to explain why that commencing date was chosen. His Honour fixed an aggregate non-parole period of nine years. It follows that the earliest date that the applicant is eligible for release on parole is 22 November 2021.

Section 53A(2) of the Sentencing Act required his Honour to indicate the sentences that his Honour would have imposed had separate sentences been imposed for each offence instead of an aggregate sentence. His Honour stated that the sentence he would have imposed was a sentence of ten years imprisonment for each offence.

The applicant's sole contention is that the sentencing Judge erred…

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 [2014] NSWCCA 125
Case: [2014] NSWCCA 125
Decision Date: 10 July 2014

CaseChat Overview and Summary

Ngati was sentenced by the court for committing a robbery in company with wounding. The appeal against the sentence was heard in the High Court of Australia. The primary issue for the court was whether the sentencing judge erred in failing to adequately consider the appellant's diminished intelligence when assessing his moral culpability. The court had to determine if the judge's failure to consider the appellant's intelligence in the "low extreme range" constituted a significant error that affected the outcome of the sentencing.

The court examined the sentencing remarks to determine whether they reflected the appellant's level of culpability. The High Court held that the sentencing judge did not err in this regard. The court found that the remarks made by the judge adequately addressed the appellant's criminal culpability, taking into account all relevant factors, including the severity of the crime and the appellant's role in it. The court concluded that the sentencing judge's findings were sufficient to ensure that the appellant's moral culpability was properly assessed, despite his diminished intelligence.

Consequently, the appeal against the sentence was dismissed. The court did not find that the sentencing judge's oversight in not explicitly mentioning the appellant's low intelligence constituted a significant error that affected the outcome. The court emphasised that the sentencing judge had addressed the appellant's culpability in a manner that took into account all relevant factors, including the gravity of the crime and the appellant's involvement. The court found no grounds to interfere with the sentence imposed.

Orders