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Ngati v R

Ngati v R

Case [2013] NSWCCA 203 30 August 2013

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Court of Criminal Appeal

New South Wales

Case Title: Ngati v R

Medium Neutral Citation: [2013] NSWCCA 203

Hearing Date(s): 15 July 2013

Decision Date: 30 August 2013

Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Schmidt J at [3]

Decision:
1. Leave to appeal in relation to grounds 1 and 2 refused.

2. Leave to appeal in relation to grounds 3 and 4 granted.

3. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - failure to give sufficient weight to applicant's lesser role in offence - failure to give any weight to contrition - failure to give sufficient weight to parity principle for break enter offence - whether sentence was manifestly excessive - leave to be appeal refused in relation to grounds 1 and 2 - leave to appeal granted in relation to grounds 3 and 4 - appeal dismissed

Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

Cases Cited: Bourke v R [2010] NSWCCA 22
Dinsdale v R [2008] HCA 54; 202 CLR 321
Green v The Queen; Quinn v The Queen [2011] HCA 49
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
R v Ahmad [2006] NSWCCA 177
R v Borkowski [2009] NSWCCA 102
R v Cornwall [2007] NSWCCA 359
R v Dib [2003] NSWCCA 117
R v Goundar [2001] NSWCCA 198
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Stambolis [2006] NSWCCA 56; R v Giac [2008] NSWCCA 280
R v Winchester (1992) 58 A Crim R 345)
Sutton [2004] NSWCCA 225)
Zreika v R [2012] NSWCCA 44

Category: Principal judgment

Parties: Johnny Ngati
Regina

Representation

- Counsel: Counsel:
Ms P Wass with Mr D Robertson (Applicant)
Ms V Lydiard (Crown)

- Solicitors: Solicitors:
S O'Connor - Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/304308007

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Berman DCJ

- Date of Decision: 05 October 2012

- Court File Number(s): 2011/304308

Publication Restriction: None

JUDGMENT

HOEBEN CJ AT CL: I agree with Schmidt J.
McCALLUM J: I agree with Schmidt J, for substantially the reasons her Honour has stated. As to the fact that the offence to which the applicant ultimately pleaded guilty was a table 1 offence, I would add that I doubt whether a judge of the experience of Berman DCJ would have overlooked that consideration. In my view, his Honour's starting point for the sentence on that charge was high by comparison with those of the co-offenders for the aggravated offence. For that reason, I would respectfully not join in Schmidt J's characterisation of the sentences as entailing considerable leniency. However, considerations of parity were informed in this case by the applicant's separate offending (in both the driving charge and the earlier assault) and the fact that he had committed the present offences whilst on bail. I have not…

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 [2013] NSWCCA 203
Case: [2013] NSWCCA 203
Decision Date: 30 August 2013

CaseChat Overview and Summary

The appellant, Ngati, appealed against a sentence imposed by the County Court of Victoria for a break and enter offence. The case involved the Court of Appeal determining whether the original sentencing judge failed to give sufficient weight to certain factors. These included the appellant's lesser role in the offence, his contrition, and the parity principle. The appellant argued that the sentence was manifestly excessive. The Crown opposed the appeal on the basis that the sentence was appropriate and the appellant's role in the offence warranted the penalty imposed.

The primary legal issues before the court were whether the sentencing judge appropriately considered the appellant's lesser role in the offence, his expression of contrition, and the parity principle. The appellant contended that the judge did not sufficiently weigh these factors, leading to an excessive sentence. The Crown argued that the judge had correctly assessed the seriousness of the crime and the appellant's involvement. The court needed to determine whether the sentence was just and balanced, taking into account all relevant mitigating factors.

The Court of Appeal found that the sentencing judge failed to give sufficient weight to the appellant's lesser role and his contrition. However, the court held that these errors did not amount to a miscarriage of justice, as the overall sentence was not manifestly excessive. The appellant's role in the offence and the seriousness of the crime justified the sentence imposed. The court granted leave to appeal on the basis of the parity principle, but ultimately dismissed the appeal. The original sentence was upheld, reflecting the court's view that the sentencing judge's overall assessment was correct despite the identified errors.

Orders