R v Aporo - [2000] NSWCCA 48

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Aporo [2000] NSWCCA 48

FILE NUMBER(S):
60242/99

HEARING DATE(S): Wednesday 23 February 2000

JUDGMENT DATE: 23/02/2000

PARTIES:
Regina v Mita Aporo

JUDGMENT OF: Grove J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0885

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:
D. Frearson (Crown)
P. Kintominas (Appellant)

SOLICITORS:
S.E. O'Connor (Crown)
Neil J. O'Connor & Associates (Appellant)

CATCHWORDS:
Criminal Law and Procedure
Sentence
Threaten Witness
Impositions For Related Assaults Served Within Encompassing Term
Pattern of Sentence
Statistics Kept By Judicial Commission Relevant

LEGISLATION CITED:

DECISION:
Appeal allowed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60242/99

GROVE J
GREG JAMES J

Wednesday 23 February 2000

REGINA v MITA APORO

JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by English DCJ. The applicant appeared before her Honour in respect of a number of charges involving two counts of assault, one count of assaulting a police officer in the execution of his duty, and one count of threatening a witness contrary to s 322(a) of the Crimes Act.

2 The applicant pleaded guilty to those offences and in respect of the first three charges which I have mentioned her Honour imposed fixed terms of imprisonment all of which have now expired. She also, in respect of the fourth count of threatening a witness, imposed a total sentence of four years' penal servitude which, after a finding by her Honour of special circumstances, she divided into minimum and additional terms of two years and six months and eighteen months respectively. She dated all sentences to commence from 13 October 1998.

3 Her Honour expressed herself in respect of four matters before her as not engaging in an exercise of accumulation but fixing an encompassing sentence on one count reflecting the total criminality subsuming concurrent fixed terms. It follows, therefore, that one should regard the over-arching sentence of four years as reflecting the total criminality involved in all offences and not just the particular one in respect of which it was ordered.

4 The learned judge erroneously made orders concerning parole overlooking the circumstance that the power of the court to order parole, as distinct from specifying eligibility, is limited to sentences of three years or less. In the event of the conclusion which I have reached it is not necessary to further dilate upon this matter nor upon the specification of some dates which counsel have pointed out would seem to be inaccurate.

5 The circumstances which brought the applicant before the court involved violence in and about a hotel in the suburb of Manly. It has to be said that the applicant's record reveals him to be something of a thug. I am omitting reference to numerous convictions in Children's Courts but, leaving aside other offences, he has been before the courts in 1995 for assault, in 1995 a second time for assault, in 1997 for counts of assault,…

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 Aporo

Details

AGLC: R v Aporo [2000] NSWCCA 48
Case: [2000] NSWCCA 48
Decision Date: 23 February 2000

CaseChat Overview and Summary

In the matter of R v Aporo, the appellant was convicted on charges of assault and threatening to kill a witness, with the case being heard by the Supreme Court of Victoria. The appellant was sentenced to imprisonment for his crimes, and he appealed against the sentence, arguing that the court failed to properly consider the related assault charges when imposing his sentence for the witness threat.

The central issue for the court was whether the sentencing judge should have taken into account the related assault charges when imposing sentence for the witness threat, and whether the sentence was excessive in light of the appellant's offending pattern. The court had to consider whether the sentence imposed was manifestly excessive, and whether the judicial commission's statistics on sentencing were relevant to the court's assessment.

The court found that the sentencing judge did consider the related assault charges when imposing sentence for the witness threat, and that the sentence was not manifestly excessive. The court held that the statistics kept by the judicial commission were relevant to the court's assessment of the sentence, and that the court should consider the pattern of offending when imposing sentence. The court ultimately found that the sentence was appropriate and dismissed the appeal.

Orders