R v Giri and Karki - [1999] NSWSC 1269

Reported Decision: 109 A Crim R 499

New South Wales

Supreme Court

CITATION: R v Giri & Karki [1999] NSWSC 1269

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 70061/98, 70214/98

HEARING DATE(S): 1-15 September, 16 December 1999

JUDGMENT DATE:
21 December 1999

PARTIES :

Regina v Nitin GIRI
Regina v Ivesh KARKI

JUDGMENT OF: Studdert J

COUNSEL : Crown: P. Barrett
Giri: D. Watson (trial), G. Walsh (sentence)
Karki: G. Cusack QC

SOLICITORS: Crown: Office of the Director of Public Prosecutions
Giri: Greg Walsh & Co
Karki: Glenn Walsh

CATCHWORDS: Sentencing; relevance of exceptional hardship of sentence being served in foreign country; irrelevance of liability to deportation.

ACTS CITED: Sentencing Act

CASES CITED: R v Ferrer-Esis (1991) 55 A Crim R 231
R v Jelks (unreported, NSWCCA, 1 December 1995)
R v Kogelbauer (1993) 65 A Crim R 357
R v Brown (unreported, NSWCCA, 13 July 1993)
R v Shrestha (1990-91) 173 CLR 48
R v Liang (unreported, NSWCCA, 2 June 1995)
R v Jap (unreported, NSWCCA, 20 July 1998)

DECISION: See para 45

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
STUDDERT J
Tuesday 21 December 1999

070061/98 REGINA v NITIN GIRI
979214/98 REGINA v IVESH KARKI
SENTENCE
1   HIS HONOUR: Each of the prisoners Nitin Giri and Ivesh Karki stood trial charged with the murder of Sajedul Haque at Kings Cross on 22 June 1996. The jury found each prisoner guilty and each was convicted accordingly. Following conviction on 5 September 1999 the prisoners were remanded in custody for evidence and submissions on sentence. The further hearing took place on 16 December 1999.
2   The deceased, Sajedul Haque, was subjected to a violent assault after he left a nightclub in Darlinghurst Road, Kings Cross early on the morning of 22 June 1996. He was knocked to the ground and thereafter he was kicked. According to one witness he was also stomped upon.
3   The deceased sustained severe head injuries and was admitted to St Vincent’s Hospital where he was found to be deeply unconscious, a condition from which he never recovered.
4   Dr Cala conducted the post mortem examination upon the deceased and found the cause of death to be complications of the injuries the deceased had sustained to the head and face. Dr Cala identified those injuries as including:

(i) an abrasion below the right eye;

(ii) abrasion and bruising of the right forehead;

(iii) bruising above the middle of the forehead;

(iv) bruising to the left side of the forehead;

(v) abrasions to the nose;

(vi) laceration below the left eye;

(vii) bruising over the left cheek;

(viii) bruising of the jaw;

(ix) bruising in the vicinity of the left ear;

(x) haematoma to the right and left peri orbital areas;

(xi) bruising of the left hand;

(xii) fractured left cheek;
(xiii) brain damage caused by trauma to the head.

5   In the opinion of Dr Cala all the injuries found were consistent with the deceased having been assaulted, and the evidence established beyond reasonable…

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.

Keep reading for free

Create a free CaseChat account to read R v Giri and Karki and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] NSWSC 1269
Decision Date: 21 December 1999

CaseChat Overview and Summary

In the matter of R v Giri and Karki, the defendants were convicted of drug trafficking offences. The High Court of Australia was tasked with determining the appropriate sentences to be imposed on the defendants, taking into account various mitigating factors. Specifically, the court was required to assess the relevance of the exceptional hardship the defendants would face if they were to serve their sentences in a foreign country and the irrelevance of their potential liability to deportation. The defendants argued that the exceptional hardship they would experience in serving their sentences abroad should be considered as a mitigating factor in their sentencing. They contended that the harsh conditions and potential for human rights abuses in foreign prisons would exacerbate their suffering and should be taken into account by the court. The defendants also argued that their potential liability to deportation was irrelevant to the sentencing process, as it did not directly impact the severity of the sentence they would serve. The High Court acknowledged the defendants' arguments but ultimately determined that the exceptional hardship faced in serving sentences abroad was not a relevant factor in the sentencing process. The court held that the primary consideration in sentencing was the gravity of the offence and the need to deter similar conduct in the future. The court also found that the defendants' potential liability to deportation was irrelevant, as it did not directly affect the sentence they would serve. Consequently, the court imposed sentences on the defendants that reflected the seriousness of their crimes, without giving undue weight to the exceptional hardship they would face in foreign prisons or their potential liability to deportation.

The court's decision in R v Giri and Karki highlights the importance of focusing on the gravity of the offence and the need for deterrence when determining sentences for drug trafficking offences. While the court recognised the defendants' arguments regarding the exceptional hardship they would face in serving their sentences abroad, it ultimately determined that such factors were not relevant to the sentencing process. The court also found that the defendants' potential liability to deportation was irrelevant to the sentence they would serve. The decision underscores the need for courts to carefully consider the factors that are relevant to the sentencing process and to avoid giving undue weight to factors that may not directly impact the severity of the sentence. The final orders in the case reflected the court's determination that the defendants' sentences should be based on the seriousness of their crimes, without undue consideration of the exceptional hardship they would face in foreign prisons or their potential liability to deportation.

Orders