Pali v The Queen - [2013] NSWCCA 65

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pali v R [2013] NSWCCA 65
Hearing dates: 19 March 2013
Decision date: 27 March 2013
Before: Basten JA at [1];
Simpson J at [25];
Blanch J at [26]
Decision:
(1) Grant leave to the applicant to appeal against each of the sentences imposed by the District Court on 10 May 2012.
(2) In respect of each sentence, dismiss the appeal.

Catchwords:
CRIMINAL LAW - appeal - sentencing - assault occasioning actual bodily harm in circumstances of aggravation - robbery of victim of assault - whether sentencing judge failed to take into account a mitigating factor that offences not planned or organised - Sentencing Procedure Act 1999 (NSW), s 21A(3)(b) - where not established whether or not the offence was part of a planned or organised criminal activity - where mitigating factor not relied upon by offender's representative in court below
CRIMINAL LAW - appeal - sentencing - whether manifestly excessive - where offences of a like kind attracted lesser sentences - where offender had unfavourable personal circumstances
Legislation Cited: Crimes Act 1900 (NSW), s 112
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
Cases Cited: Bolt v Regina [2012] NSWCCA 50
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Ngati v R [2008] NSWCCA 3; 180 A Crim R 384
R v Terkmani [2009] NSWCCA 142; 195 A Crim R 298
Romero v R [2011] VSCA 45; 206 A Crim R 519
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Kevin William Pali (Applicant)
Regina (Respondent)
Representation:
Counsel:

Ms H L A Cox (Applicant)
Ms T L Smith (Crown)
Solicitors:
Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2011/299988
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-05-10 00:00:00

Before:

Conlon DCJ

File Number(s):

2011/299988

Judgment

BASTEN JA: The applicant, Mr Kevin Pali, is presently serving a sentence of imprisonment consequent upon his conviction on one count of break and enter and commit a serious indictable offence, namely assault occasioning bodily harm, in circumstances of aggravation and one count of robbing the victim of the assault of an amount of $125 in cash.

With respect to the first count, being an offence against s 112(2) of the Crimes Act 1900 (NSW), Judge Conlon SC, imposed a sentence involving a non-parole period of five years to date from 17 September 2011 with an additional term of one year and eight months, to expire on 16 May 2018. For the robbery, the sentencing judge imposed a wholly concurrent term involving a non-parole period of three years with an additional term of one year. The applicant is therefore serving an effective minimum custodial term of five years, which will expire on 16 September 2016. That sentence matched the standard non-parole period for an offence under s 112(2), being five years, with an additional term equivalent to one-third of the non-parole period, in accordance with…

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 Pali v The Queen

Details

AGLC: Pali v The Queen [2013] NSWCCA 65
Case: [2013] NSWCCA 65
Decision Date: 27 March 2013

CaseChat Overview and Summary

The case of Pali v The Queen involved an appeal by the defendant against his sentencing for an assault occasioning actual bodily harm, which occurred during a robbery. The matter was heard in the New South Wales Court of Criminal Appeal. The defendant was convicted of these offences and was sentenced by a magistrate in the Local Court, who imposed a term of imprisonment. The defendant sought to appeal the sentence, arguing that the sentencing judge had failed to consider a mitigating factor and that the sentence was manifestly excessive.

The legal issues before the court were whether the sentencing judge had failed to take into account the fact that the offences were not planned or organised, and whether the sentence imposed was manifestly excessive. The court had to consider whether the sentencing judge erred in failing to consider the mitigating factor that the offences were not part of a planned or organised criminal activity, and whether the sentence was manifestly excessive when compared to sentences imposed for similar offences.

The court found that the sentencing judge had not erred in failing to consider the mitigating factor that the offences were not planned or organised. The court held that it was not established whether or not the offence was part of a planned or organised criminal activity, and that the mitigating factor was not relied upon by the offender’s representative in the court below. The court further found that the sentence imposed was not manifestly excessive, despite the fact that similar offences had attracted lesser sentences. The court held that the offender had unfavourable personal circumstances, which justified the sentence imposed.

The appeal was dismissed, and the original sentence was upheld.

Orders