R v Kama

Case [2000] NSWCCA 23 14 February 2000

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Reported Decision: [2000] 110 A Crim R 47

New South Wales

Court of Criminal Appeal

CITATION: REGINA v KAMA [2000] NSWCCA 23

FILE NUMBER(S): CCA 60479/99

HEARING DATE(S): 14 February 2000

JUDGMENT DATE:
14 February 2000

PARTIES :

Regina v Torrence KAMA

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 21; Smart AJ at 31

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0552

LOWER COURT JUDICIAL
OFFICER : Williams DCJ

COUNSEL : M C Marien (Crown)
A Webb (Respondent)

SOLICITORS: S E O'Connor (Crown)
T A Murphy (Respondent)

CATCHWORDS: CRIMINAL LAW - sentencing - Crown appeal - maliciously inflicting grievous bodily harm - manifestly inadequate sentence - double jeopardy - Criminal Appeal Act 1912, s5D - Crimes Act 1900, s35

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Criminal Appeal Act 1912
Crimes Act 1900

CASES CITED:
R v Gordon (1994) 71 A Crim R 459

DECISION: Crown appeal allowed, sentence quashed and new sentence substituted. Respondent sentenced to a minimum term of two years penal servitude to be served by periodic detention commencing on 20 August 1999, with an additional term of one year periodic detention commencing on 20 August 2001.

IN THE COURT OF
CRIMINAL APPEAL

60479/99

SPIGELMAN CJ
HULME J
SMART AJ
Monday 14 February 2000

REGINA v Torrence KAMA
JUDGMENT

1 SPIGELMAN CJ: This is a Crown appeal pursuant to s5D of the Criminal Appeal Act 1912 against a sentence imposed by his Honour Judge Williams at the Sydney District Court on 9 August 1999. On 12 May 1999, the Respondent had pleaded guilty to one count under s35 of the Crimes Act 1900 of maliciously inflicting grievous bodily harm to Shailendra (Tommy) Naidu (the victim).
2 The maximum penalty for an offence under s35 of the Crimes Act is penal servitude for seven years. The sentencing judge imposed a sentence of penal servitude for twenty-seven months, comprising a minimum term of nine months, to be served by way of periodic detention commencing on 20 August 1999 and expiring on 19 May 2000, with an additional term of eighteen months commencing on 20 May 2000, expiring on 19 November 2001.
3 The offence occurred on 23 February 1998 and was constituted by a vicious assault by the Respondent, then aged seventeen years and eight months, together with a co-offender, Livingstone Oloapu, then just under the age of sixteen. A third person was involved in the attack and acted as a lookout.
4 The evidence of an eye witness was accepted by the sentencing judge and was to the following effect:

"Both of them were stomping Tommy with their feet and punching him with their fists. Tommy was on the ground and he looked like he was knocked unconscious. Both guys said something like, 'you keep out of this'. They were hitting Tommy about the head and he was bleeding a lot from the left side of his head. They were just hitting and stomping on Tommy, mostly on his head. They were really…

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 Kama

Details

AGLC: R v Kama [2000] NSWCCA 23
Case: [2000] NSWCCA 23
Decision Date: 14 February 2000

CaseChat Overview and Summary

In the matter of the Crown versus Kama, the High Court was called upon to assess the appropriateness of a sentence handed down in a lower court for an offence of maliciously inflicting grievous bodily harm. The lower court had sentenced the defendant to a term of imprisonment which the Crown deemed to be manifestly inadequate. The appeal was brought under the auspices of the Criminal Appeal Act 1912, and the Crown's appeal hinged on whether the original sentence was indeed manifestly inadequate, thus warranting a higher sentence. Additionally, the Court had to consider whether the principles of double jeopardy could be circumvented in this context, and whether the provisions of the Crimes Act 1900 could be invoked to allow for an increase in the sentence.

The central issue for the Court was to determine whether the sentence imposed was manifestly inadequate, thereby justifying an appeal by the Crown under the relevant statutory provisions. The Court also had to examine whether the principles of double jeopardy, which generally prevent a person from being tried again for the same offence following a conviction or acquittal, could be set aside in this instance due to the nature of the appeal being a Crown appeal. Furthermore, the Court was tasked with interpreting the relevant sections of the Crimes Act 1900 to ascertain whether they permitted an increase in the sentence in the circumstances of this case.

The Court found that the original sentence was indeed manifestly inadequate given the gravity of the offence and the need to deter similar conduct in the future. The principles of double jeopardy did not apply as this was a Crown appeal, not a second prosecution of the defendant for the same offence. The Court determined that the provisions of the Crimes Act 1900 allowed for an increase in the sentence in this context. Consequently, the Court allowed the appeal and increased the sentence imposed on the defendant. This decision underscores the importance of ensuring that sentences reflect the seriousness of offences and the need for effective deterrence, while also respecting the statutory framework governing criminal appeals in Australia.

Orders