R v Baleisuva - [2004] NSWCCA 344

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Baleisuva [2004] NSWCCA 344

FILE NUMBER(S):
2004/1870

HEARING DATE(S): 29/09/04

JUDGMENT DATE: 13/10/2004

PARTIES:
Alfred William Baleisuva - Applicant
Crown - Respondent

JUDGMENT OF: Dunford J Barr J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0700

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
A P Cook - Applicant
Ms J Girdham - Crown

SOLICITORS:
S O'Connor, Legal Aid Commission - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Crown

CATCHWORDS:
Failure to identify co-offenders - relevance to contrition and rehabilitation, appropriateness of questions by sentencing judge.

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted, appeal allowed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1870
DUNFORD J
BARR J
HOEBEN J
Wednesday, 13 October, 2004

REGINA v Alfred BALEISUVA

Judgment

DUNFORD: I agree with Hoeben J.
BARR J: I agree with Hoeben J.
HOEBEN J: On 22 July 2003 at the Downing Centre Local Court the applicant pleaded guilty to the following offence for which he was committed for sentence to the Sydney District Court.
That on 21 January 2003 at Caringbah in the State of New South Wales did break and enter the commercial building of O’Brien Auto Body Repair Shop situate at 37 Parraweena Road Caringbah and then while in the said shop did steal motor vehicle registration AMX 11C the property of Andrew Maritos and motor vehicle registration AMK 16J the property of Brett Cooper.
This offence was contrary to the provisions of s112(1) of the Crimes Act 1900 the maximum penalty for which was imprisonment for 14 years.
On 12 December 2003 at the Sydney District Court the applicant adhered to his plea and came before Dodd DCJ for sentence. His Honour sentenced the applicant to a term of imprisonment for 6 years, to date from 12 December 2003 and expire on 11 December 2009. He set a non-parole period of 3 years, to date from 12 December 2003 and to expire on 11 December 2006.
Facts
The applicant in company with three other persons went in a stolen car to the premises. The front door of the premises was smashed open, locks were broken with bolt-cutters and after the roller-shutter door into the premises had been opened, a cabinet was broken into. His Honour accepted that the applicant did not actually participate in any of those actions at the premises.
An alarm was activated as a result of which a security vehicle arrived. Three vehicles were observed to have been moved onto the driveway before the relevant two vehicles were stolen. The arrival of the security vehicle caused the applicant and the other offenders to decamp. The applicant drove one of the stolen vehicles, being a Nissan Skyline AMK 16J. The three vehicles were observed travelling at high speed west along Parraweena Road.
Highway patrol police subsequently observed the three vehicles travelling at high speed along Park Road, Kogarah Bay. The highway patrol activated the warning devices on the vehicle…

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 Baleisuva

Details

AGLC: R v Baleisuva [2004] NSWCCA 344
Case: [2004] NSWCCA 344
Decision Date: 13 October 2004

CaseChat Overview and Summary

The case of R v Baleisuva involves an appeal against a sentence handed down by the Sydney District Court. The applicant, who had pleaded guilty to involvement in a break-in and subsequent high-speed chase, was sentenced to six years in prison with a non-parole period of three years. The appeal centred on two primary grounds: the sentencing judge's consideration of the applicant's failure to identify his co-offenders as relevant to his contrition and rehabilitation efforts, and the appropriateness of the questions posed by the sentencing judge regarding a hypothetical criminal scenario.

The legal issues before the court were whether the sentencing judge was correct in considering the applicant's refusal to identify his co-offenders as relevant to his contrition and rehabilitation efforts, and whether the questions posed by the sentencing judge regarding a hypothetical criminal scenario were fair and appropriate. The court had to determine if the sentencing judge's approach was judicially appropriate and if it adhered to the principles of sentencing in criminal law.

The court found that the sentencing judge was entitled to consider the applicant's failure to identify his co-offenders, given his active participation in the crime and his role in the events leading up to the arrest. The court also determined that the questions regarding the hypothetical criminal scenario were imprecise and unfairly placed the applicant in a difficult position, regardless of his response. Consequently, the court concluded that while the sentence was within the appropriate range considering the seriousness of the offence, the manner in which certain factors were considered by the sentencing judge involved error.

The appeal was dismissed with respect to the sentence but allowed in relation to the sentencing process. The court did not alter the sentence but highlighted the need for judicial officers to ensure that their questioning and considerations during sentencing do not unfairly prejudice the defendant. This decision underscores the importance of maintaining a fair and balanced approach in sentencing, ensuring that the process respects the principles of criminal justice.

Orders

Orders of the court

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Background

Background to the litigation

On 12 December 2003 at the Sydney District Court the applicant adhered to his plea and came before Dodd DCJ for sentence. His Honour sentenced the applicant to a term of imprisonment for 6 years, to date from 12 December 2003 and expire on 11 December 2009. He set a non-parole period of 3 years, to date from 12 December 2003 and to expire on 11 December 2006.Facts The applicant in company with three other persons went in a stolen car to the premises. The front door of the premises was smashed open, locks were broken with bolt-cutters and after the roller-shutter door into the premises had been opened, a cabinet was broken into. His Honour accepted that the applicant did not actually participate in any of those actions at the premises. An alarm was activated as a result of which a security vehicle arrived. Three vehicles were observed to have been moved onto the driveway before the relevant two vehicles were stolen. The arrival of the security vehicle caused the applicant and the other offenders to decamp. The applicant drove one of the stolen vehicles, being a Nissan Skyline AMK 16J. The three vehicles were observed travelling at high speed west along Parraweena Road. Highway patrol police subsequently observed the three vehicles travelling at high speed along Park Road, Kogarah Bay. The highway patrol activated the warning devices on the vehicle and pursued two of the vehicles for a number of kilometres. At some point those two vehicles separated and the police followed the vehicle which the applicant was driving. At the intersection of Halstead and Truman Streets, South Hurstville the vehicle driven by the applicant collided with the other stolen vehicle being that in which the applicant had originally travelled to the premises. The occupants of the vehicles fled from the scene except for the applicant. He was trapped in the driver’s seat of the Nissan Skyline. The applicant was placed under arrest and taken to St George Hospital for medical treatment for injuries sustained in the collision. Sledgehammers and bolt-cutters were removed from both of the damaged vehicles. The applicant was wearing gloves when found in the driver’s seat. It was common ground that the value of the two vehicles stolen from the premises was in excess of $15,000. The applicant told police that earlier in the evening a mate had telephoned him and asked him to come to a place at Taren Point. The applicant refused to reveal the identity of that caller. The applicant had been picked up by three other mates and driven in the car to the premises at Taren Point. The applicant admitted to assisting in breaking into the premises and admitted driving the Nissan Skyline from the scene. The applicant gave evidence and was cross-examined. The additional evidence thereby adduced can be summarised as follows:(i) The applicant had been keeping a look out while his companions actually broke into the premises.(ii) He saw the tools almost immediately after he got into the car so that he became suspicious that they were going to commit a crime. Nevertheless, he did not ask to be let out of the car. The applicant said that he had a problem saying no.(iii) He had not participated in the theft of the car which had picked him up and taken him to the premises. He realised after about ten minutes or so that this car was stolen.(iv) He was not prepared to reveal the names of his companions. The reason why was that he feared for his life since one of the co-offenders had been in custody and knew a lot of people.Remarks on sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUNFORD J

In support of the second ground, it is submitted that the applicant has consistently expressed his remorse and contrition and has exhibited a high degree of commitment towards rehabilitating himself. It was not open to his Honour to have regard to the applicant’s failure to identify his co-offenders as impacting upon either the genuineness of his contrition or attempts at rehabilitation. In addition, the questions relating to the hypothetical circumstances were unfair. As a general criticism of his Honour’s approach it is submitted that his Honour took on a role more akin to that of a prosecutor than that appropriate to a judicial officer. Reliance is placed on the remarks of Kirby P in Chow v DPP (1992) 28 NSWLR 593 at 606.Decision In relation to the first ground of appeal, I do not see that the decision of this Court in R v Fajka is relevant to these proceedings. That was a case where the sentencing judge in effect made the offender in part responsible for much that a co-offender said or did during the commission of the offence simply because he happened to be in his presence. The offence there being considered being one of affray in licensed premises. The situation here is quite otherwise. The applicant knew within approximately ten minutes that his companions were in a stolen car and were intending to engage in a criminal act as a result of the tools which he observed in the car. Thereafter he did not make any attempt to either leave the vehicle or to dissuade his companions from that conduct. Although there is no evidence that he engaged in the physical activity of breaking and entering, he kept watch whilst that activity was taking place. He drove away at high speed in one of the stolen vehicles and persisted in trying to avoid apprehension when he knew he was being pursued by the police. The fact that he was wearing gloves in January, a matter to which his Honour specifically referred when reviewing the facts, places some doubt on his version of passive involvement only. The objective seriousness of the offence (maximum sentence 14 years), its prevalence and the aggravating features surrounding it – a high speed attempt to escape and the value of goods in excess of $15,000 - required his Honour to have regard to not only personal deterrence, but also general deterrence. In that regard a full time custodial sentence was inevitable. His Honour was also entitled to have regard to the serious nature of the applicant’s prior criminal record, the fact that he had already served a period of full-time custodial confinement and that he was on parole and on a bond at the time of the offence. In relation to the second ground of appeal, I agree with the submission that the “hypothetical criminal scenario” put by his Honour to the applicant involved an element of unfairness. Not only was the proposition unduly imprecise, but whatever answer the applicant gave was going to get him into trouble. His Honour’s use of the answers which he received in relation to that “hypothetical criminal scenario” clearly involved error.

Ratio Decidendi

Legal Principle Established

Established by: DUNFORD J

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