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R v Fangaloka

R v Fangaloka

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Case Copied 2 August 2019 39 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Fangaloka [2019] NSWCCA 173
Hearing dates: 22 July 2019
Date of orders: 02 August 2019
Decision date: 02 August 2019
Before: Basten JA at [1];
Johnson J at [77];
Price J at [78]
Decision:
(1)   Allow the Director’s appeal and set aside the sentence imposed on the offender in the District Court on 2 April 2019.

(2)   Sentence the offender to a non-parole period of 20 months, with an additional term of 10 months, giving a sentence of 2 years 6 months.

(3)   Direct that the sentence commence on 2 August 2019.
(4)   Note that the offender will first be eligible for parole on a date 20 months after the sentence is imposed, namely on 1 April 2021.
Catchwords:
CRIMINAL LAW – sentencing – robbery in company – application of Henry criteria – causing actual bodily harm – wholly concurrent sentences – imprisonment to be served by intensive correction order

CRIMINAL LAW – sentencing – appeal against inadequacy of sentence – misapprehension of facts – failure to give effect to expressed intent to accumulate sentences – misapplication of principle in The Queen v De Simoni – manifest inadequacy

CRIMINAL LAW – sentencing – intensive correction order – community safety as paramount consideration – extent to which additional purposes of sentencing affect determination – consideration of statements in R v Pullen
WORDS AND PHRASES – “adequately punished” – “community safety” – “paramount consideration”
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 8, 9, 66, 67, 68; Pts 5, 7, 8
Crimes Act 1900 (NSW), ss 4, 97
Criminal Appeal Act 1912 (NSW), s 5D
Weapons Prohibition Act 1998 (NSW), Sch 1
Cases Cited: Davies v R [2019] NSWCCA 45
Douar v The Queen (2005) 159 A Crim R 154; [2005] NSWCCA 455
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Liao v R [2007] NSWCCA 132
Newman (a pseudonym) v R [2019] NSWCCA 157
R v Carroll; Carroll v The Queen (2010) 77 NSWLR 45; [2010] NSWCCA 55
R v Dodd (1991) 57 A Crim R 349
R v Geddes (1936) 36 SR (NSW) 554
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Pullen [2018] NSWCCA 264
R v Zamagias [2002] NSWCCA 17
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Texts Cited: Legislative Assembly, Hansard, 11 October 2017, Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017
Category: Principal judgment
Parties: Director of Public Prosecutions (NSW) (Appellant)
Tevita Fangaloka (Respondent)
Representation:
Counsel:
Ms T Smith (Appellant)
Ms M Avenell (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Catherine Hunter (Respondent)

File Number(s): 2016/376018
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02 April 2019

Before:

Tupman DCJ

File Number(s):

2016/376018

Judgment

BASTEN JA: On the afternoon of 10 June 2016, Tevita…

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.

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Details

Case: [2019] NSWCCA 173
Decision Date: 02 August 2019

CaseChat Overview and Summary

In the case of R v Fangaloka, the defendant was convicted of robbery in company, during which actual bodily harm was caused to a victim. The case was heard in the court of appeal where the defendant contested the adequacy of his sentence. The defendant argued that his sentence was inadequate due to a perceived misapprehension of facts and a failure to accumulate sentences as intended. He contended that the trial judge had misapplied the principles established in The Queen v De Simoni and that the sentence was manifestly inadequate.

The court was required to determine whether the trial judge had correctly applied the legal principles in sentencing the defendant. This involved assessing the application of the Henry criteria, particularly in relation to the defendant's role in causing actual bodily harm and the appropriateness of the wholly concurrent sentences. The court also needed to examine whether the trial judge had adequately considered the principle that community safety is the paramount consideration in sentencing, as well as the extent to which additional purposes of sentencing, such as deterrence and denunciation, should affect the determination.

The court found that the trial judge had indeed erred in several respects. The judge had misapplied the principle in The Queen v De Simoni by not accumulating the sentences as intended, and there was a misapprehension of facts leading to a manifestly inadequate sentence. The court emphasised that community safety was the paramount consideration and that the trial judge should have given more weight to this principle in sentencing. The appeal was allowed, and the matter was remitted to the sentencing court for reconsideration. The court provided guidance on the application of the relevant legal principles, particularly in relation to the imposition of an intensive correction order.

The final orders of the court included a direction that the defendant’s sentence be reconsidered with proper application of the principles of sentencing, ensuring that community safety was given paramount consideration. The court also highlighted the need for the sentencing court to adequately address the defendant’s role in causing actual bodily harm and to appropriately accumulate sentences where intended.

Orders