R v Aporo
[2000] NSWCCA 48
•23 February 2000
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, assault occasioning actual bodily harm and affray, the total counts of assault were four and of occasioning actual bodily harm two. Again in 1997 he was before another court for assault and again in 1998. Accordingly the applicant would appear, in respect of the matters which I have specified, as a person meeting the description of a recidivist.
6 It is unnecessary to set out in detail the facts of the altercations outside the hotel in Manly. These are recited in the agreed statement of facts tendered in the District Court which have been recited in full by her Honour in her remarks on sentence.
7 That leads me to her findings in relation to the fourth count of threatening a witness. The entirety of her findings is contained in this extract:
"In the early hours of 13 October 1998 (the victim) was working as a security guard at the Manly Boatshed, a nightclub. The prisoner approached (the victim) and made a gesture in the shape of a gun with his fingers pointing at his own head, and then flicking it away. To use the words of (the victim) 'like the Los Angeles gangs do on TV.' In the ensuing discussion the prisoner said - 'Don't fuck me, if you fuck with me I am going to fuck with you. Don't charge me. If you charge me I am going to get you.' A few minutes later inside the nightclub the prisoner repeated, 'John, don't fuck with me.' The prisoner did not want to be charged by the police or by the victim."
8 In the course of her remarks her Honour described the fourth count as being the most serious. In that description I do not find her Honour fell into error and I would reject the contention advanced by counsel for the applicant that she did. Nevertheless it was necessary that some assessment be made of the criminality involved in the facts found by her Honour.
9 It has been pointed out to the court that the statistics kept by the Judicial Commission show that a sentence of a total of four years divided into a minimum term of two and a half years with an additional term of one and a half years is the heaviest sentence ever imposed in respect of this particular offence. It is a reasonable conclusion that that statistic reflects the particular case which is the subject of the current application.
It was submitted that it is difficult to conceive that the facts found by her Honour (which I have reproduced) and his record which I have briefly touched upon, represent either the worst case or the worst offender, or both. I would respectfully agree with that submission.
There has been some discussion in the course of the hearing about an extract from a statement which was tendered before the District Court. It was a statement by the victim in which it was asserted that the applicant had said "If I go to prison I'm going to get someone to kill you." Objectively assessed, I would regard that statement as more serious than the facts which her Honour found. In my view, given that it was for her Honour to find available facts from the evidence before her for purposes of sentence and that she did not make a finding that those words were used, it is not appropriate to consider her assessment of sentence in the light of this evidence to which she did not refer.
Attention has also been drawn to the circumstance that there was jurisdiction in a Local Court to deal with all of the offences which were before the District Court. In the whole of the circumstances I do not regard that as a matter of any consequence. I am, however, of the view, that even allowing that the sentence of four years was expressed by her Honour to reflect the totality of criminality including that of the three offences for which the specific sentences have now expired, it was excessive.
This conclusion is reached weighing the apparent seriousness of the threat and accepting guidance available from recorded statistics. Comparison would suggest that this sentence is markedly out of kilter with any sentence pattern derivable from them.
In my view the jurisdiction of this court is enlivened by that circumstance and it should intervene to re-sentence.
I propose that sentence be adjusted in respect only to count 4 bearing in mind, as I have observed, that the sentences imposed in respect of counts 1-3 are expired and although this application is not made in respect of them, it is accepted that it would be relevant to give account to the circumstances concerning them.
I therefore propose that the appeal be allowed but before doing so, I should refer to the finding by her Honour that special circumstances required an adjustment by way of extension of the additional term component of her imposition. Given the record of the applicant which I have described in brief terms and the absence of any real indication of a path or an effort towards rehabilitation, I would for my part find that there are no special circumstances justifying the departure from the division of sentence specified in s5(2) of the Sentencing Act.
The orders I propose are as follows: the application for leave to appeal be granted, the appeal be allowed, the sentence imposed upon count 4 of threatening a witness contrary to s 322(a) of the Crimes Act be quashed and in lieu thereof the applicant be sentenced to a total term of two years' imprisonment to consist of a minimum term of one year six months commencing 13 October 1998 and expiring 12 April 2000, together with an additional term of six months commencing on 13 April 2000. I would order that the applicant be released to parole on 12 April 2000 and whilst on parole he be subject to the authority of the Probation and Parole Service.
GREG JAMES J: I agree.
GROVE J: The orders of the court, therefore, will be as I have proposed.
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LAST UPDATED: 03/03/2000
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