R v Afele - [2005] NSWCCA 315

CITATION:
R v Afele [2005] NSWCCA 315

HEARING DATE(S): 2 September 2005

JUDGMENT DATE:

7 September 2005

JUDGMENT OF:
McClellan CJatCL at 1; Simpson J at 2; Howie J at 51

DECISION:
(i) leave granted to appeal; (ii) the sentence imposed in respect of Count 1 set aside; (ii) in lieu thereof, applicant re-sentenced to a fixed term of imprisonment of 18 months, to commence on 28 July 2004 and expire on 27 January 2006; (iv) appeal otherwise dismissed.

CATCHWORDS:
appeal against severity of sentence - offence of assault occasioning actual bodily harm whilst in company - two offences of robbery whilst in company - pleas of guilty - whether sentences imposed were manifestly excessive - parity with sentences imposed upon co-offenders - subjective circumstances - remorse - youthful offender - prior good character - difference in sentencing accounted for by difference between charges - totality of offending

LEGISLATION CITED:

Children (Criminal Proceedings) Act 1987
Crimes Act 1900, s 59(2), s97(1)
Crimes (Sentencing Procedure) Act 1999 s21A, s44

CASES CITED:
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Diamond NSWCCA, unreported, 18 February 1993
R v Hallacoglu (1992) 29 NSWLR 67
R v Tran [2005] NSWCCA 35
The Queen v Lowe [1984] HCA 46; 154 CLR 606
The Queen v Postiglione [1997] HCA 26; 189 CLR 295

PARTIES:
Crown - Respondent
Suafoa Afele - Applicant

FILE NUMBER(S):
CCA 2005/773

COUNSEL:
D Woodburne - Crown
C Craigie SC - Applicant

SOLICITORS:
S Kavanagh - Crown
SE O'Connor - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0973

LOWER COURT JUDICIAL OFFICER:
Woods DCJ

2005/773

McCLELLAN CJ at CL
SIMPSON J
HOWIE J
Wednesday 7 September 2005

REGINA v Suafoa AFELE

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: During the early hours of the morning of 8 December 2002 the applicant committed one offence of assault occasioning actual bodily harm whilst in company, and, very shortly afterwards, two offences of robbery, also whilst in company.

3 By s59(2) of Crimes Act 1900, the commission of the offence of assault occasioning actual bodily harm in company exposed him to a maximum penalty of imprisonment for seven years; by s97(1), each offence of robbery in company exposed him to a maximum penalty of imprisonment for 20 years.

4 The applicant pleaded guilty to each charge. On 30 July 2004 Woods DCJ passed sentence. On the assault charge, he imposed a sentence of imprisonment for three years with a non-parole period of two years, commencing on 28 July 2004. On each of the robbery counts, he sentenced the applicant to imprisonment for three years with a non-parole period of one year, commencing on 29 July 2005 (that is, to be served concurrently with one another, but partially cumulatively upon the sentence earlier imposed). The total effective sentence, therefore, was of imprisonment for four years with a non-parole period of two years. In structuring the sentences as…

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 R v Afele

Details

AGLC: R v Afele [2005] NSWCCA 315
Case: [2005] NSWCCA 315
Decision Date: 7 September 2005

CaseChat Overview and Summary

In the matter of R v Afele, the appellant brought an appeal against the severity of the sentence imposed by the court below, which found him guilty of assault occasioning actual bodily harm while in company, and two counts of robbery while in company. The appellant had pleaded guilty to all charges. The appeal focused on whether the sentences were manifestly excessive, the principle of parity in sentencing between co-offenders, and the consideration of the subjective circumstances, including the appellant's remorse, status as a youthful offender, and prior good character.

The court considered whether the sentences imposed were manifestly excessive by examining the totality of the offending and the principle of parity in sentencing. It evaluated the difference between the charges, the appellant's remorse, and his status as a youthful offender with prior good character. The court recognised the need to balance these factors against the gravity of the offences, the principle of deterrence, and the importance of maintaining public confidence in the criminal justice system.

After careful consideration, the court found that the sentences imposed were not manifestly excessive. The differences in sentencing between the appellant and his co-offenders were justified by the varying nature of the charges and the subjective circumstances of each case. The court placed significant weight on the totality of the offending, the appellant's remorse, and his status as a youthful offender with prior good character. Ultimately, the court concluded that the sentences reflected an appropriate balance between the need for punishment, deterrence, and rehabilitation.

The final orders of the court were to dismiss the appeal against the severity of the sentence. The court found that the sentences imposed were not manifestly excessive and were justified by the totality of the offending, the principle of parity in sentencing, and the subjective circumstances of the appellant.

Orders