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R v Jeremiah

R v Jeremiah

Case [2016] NSWCCA 241 2 November 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Jeremiah [2016] NSWCCA 241
Hearing dates: 21 October 2016
Date of orders: 02 November 2016
Decision date: 02 November 2016
Before: Meagher JA, Davies and Fagan JJ
Decision:
1. The appeal is allowed.

2. The sentence imposed upon Moromi Jeremiah on 30 June 2016 for the offence of assault occasioning actual bodily harm committed on 22 October 2014 is quashed.
3. In lieu thereof Moromi Jeremiah is sentenced to imprisonment for a non-parole period of 1 year 3 months to commence on 25 March 2017 and to expire on 24 June 2018 and a balance of term of 5 months to commence on 25 June 2018 and to expire on 24 November 2018.
Catchwords: CRIMINAL LAW – appeal against sentence – manifest inadequacy – sentence imposed entirely concurrent with sentence for unrelated offences – whether sentencing judge erred by failing to accumulate sentences – principle of totality
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: CMB v Attorney General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Pannowitz v R [2016] NSWCCA 13
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Fyffe [2002] NSWSC 751
R v Hoskins [2004] NSWCCA 236
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Regina v Wheeler [2000] NSWCCA 34
Category: Principal judgment
Parties: Regina (applicant)
Moromi Jeremiah (respondent)
Representation:
Counsel:
Ms Belinda Baker (applicant)
Ms April Francis (respondent)
Solicitors:
Mr C Hyland, Office of the Director of Public Prosecutions (applicant)
Mr S Eccleshall, Legal Aid Commission (respondent)

File Number(s): 2014/325851
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

30 June 2016

Before:

Farmer SC DCJ

File Number(s):

2014/325851

Judgment

THE COURT: The respondent Moromi Jeremiah pleaded guilty in the District Court on 30 June 2016 to a charge of assault occasioning actual bodily harm in company contrary to s 59(2) Crimes Act 1900 (NSW). The Crown appeals against inadequacy of the sentence imposed by his Honour the late Judge Farmer SC, on the ground that the learned judge failed to accumulate the sentence to any extent upon a term of imprisonment which the respondent was already serving when the sentence under appeal was imposed.
On 25 September 2013 the respondent had committed offences of common assault, aggravated entering of a dwelling house whilst armed, with intent to commit an indictable offence, and causing grievous bodily harm with intent. He had been arrested for that group of offences on the day they were committed and was on remand in custody awaiting trial from then until 28 August 2015. On the latter date he was convicted of those offences and sentenced for them by his Honour Judge Cogswell SC.
The assault which was the…

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 Jeremiah

Details

AGLC: R v Jeremiah [2016] NSWCCA 241
Case: [2016] NSWCCA 241
Decision Date: 02 November 2016

CaseChat Overview and Summary

In the matter of R v Jeremiah, the defendant appealed against the sentence imposed by the trial judge. The case arose from two separate incidents: the first being an assault occasioning bodily harm, and the second being an unlawful use of a motor vehicle. The defendant was sentenced to a period of imprisonment for each offence, but the sentences were ordered to run concurrently. The defendant argued that the sentence was manifestly inadequate and that the trial judge had erred by not accumulating the sentences, contrary to the principle of totality.

The legal issue before the court was whether the trial judge erred in ordering the sentences to run concurrently, rather than accumulating them. The principle of totality requires that the aggregate term of imprisonment not exceed what would be an appropriate sentence for all the offences taken together. The court was required to determine if the trial judge had failed to apply this principle appropriately.

The court found that the trial judge had indeed erred by ordering the sentences to run concurrently without applying the principle of totality. The principle of totality ensures that the total punishment imposed is proportionate to the overall criminality of the offender. The court held that the trial judge should have accumulated the sentences for the two offences, considering the totality of the defendant's offending, before determining the appropriate concurrent term. The appeal was allowed on the basis of the manifest inadequacy of the sentence and the failure to apply the principle of totality.

The court ordered a retrial of the sentencing to ensure that the principle of totality was correctly applied. It was directed that the sentences for the two offences be accumulated and then considered together to determine an appropriate concurrent term of imprisonment. The defendant was to be re-sentenced in light of these findings.

Orders