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R v Knight; R v Biuvanua

R v Knight; R v Biuvanua

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Case Copied 24 September 2007 28 min read

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Reported Decision: 176 A Crim R 338

New South Wales

Court of Criminal Appeal

CITATION: R v KNIGHT R v BIUVANUA [2007] NSWCCA 283

HEARING DATE(S): 14 August 2007

JUDGMENT DATE:
24 September 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 7; Howie J at 9

DECISION: Knight appeal 1. Crown appeal allowed; 2. The sentence imposed in District Court is quashed; 3. In lieu the respondent is sentenced to a term of imprisonment made up of a non-parole period of 10 years and a balance of term of 4 years and 4 months. The sentence is to date from 29 September 2005 and the non-parole period is to expire on 28 September 2015 the date upon which the respondent is eligible to be released on parole Biuvanua appeal; Appeal dismissed

CATCHWORDS: CRIMINAL LAW – Crown appeal against sentence – supply ecstasy – husband and wife co-offenders – complaint about departure from the standard non parole period – parity between co-offenders – strong subjective case for wife – objective criminality assessed as “at least mid range” – whether the non-parole period imposed reflected the objective criminality – whether sentence was manifestly inadequate

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Daniel Robert Vos v R [2006] NSWCCA 234
Dominey v R [2006] NSWCCA 222
Le Huynh v R [2006] NSWCCA 77
Lovell v R
MLP v R [2006] NSWCCA 271
R v AJP (2004) 150 A Crim R 575
R v BSW [2007] NSWCCA 59
R v MD, BM, NA & JT (2005) 156 A Crim R 372
R v Mills (2005) 154 A Crim R 230
R v Moore and Weibe (NSWCCA 11 August 1992, unreported)
R v Pearce (1998) 194 CLR 610
R v Saba [2006] NSWCCA 214
R v Way (2004) 60 NSWLR 168
R v Witchard [2007] NSWCCA 167
R v Zegura [2006] NSWCCA 230
Reaburn v R [2007] NSWCCA 60

PARTIES: The Crown (Appl)
Joy Lorraine Knight (Resp)
Viliame Biuvanua (Resp)

FILE NUMBER(S): CCA 2007/3242; 2007/3243

COUNSEL: T Thorpe (Crown/Appl)
A Cook (Resp - Knight)
P Strickland SC (Resp - Biuvanua)

SOLICITORS: Director of Public Prosecutions (Crown)
Nyman Gibson Stewart (Knight)
Legal Aid Commission of NSW (Biuvanua)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0854 (Knight)
06/11/0854 (Biuvanua

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 24 May 2007

2007/3242
2007/3243

McCLELLAN CJ AT CL
HIDDEN J
HOWIE J
MONDAY 24 SEPTEMBER 2007

R v Joy Lorraine KNIGHT

R v Viliame BIUVANUA

Judgment

1 McCLELLAN CJ AT CL: The principles by which the Court will review a sentence at the request of the Crown are well known. They were considered in R v MD, BM, NA & JT (2005) 156 A Crim R 372 [18]-[21].

2 Notwithstanding the impact that these principles should have on the number and likely success of Crown appeals in recent years the number of Crown appeals has increased. The proportion of those appeals which have been upheld by this Court…

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: [2007] NSWCCA 283
Decision Date: 24 September 2007

CaseChat Overview and Summary

In the recent decision of R v Knight; R v Biuvanua, the appellants were convicted for their involvement in the supply of a large quantity of ecstasy. Both were co-offenders and were found to have played equal roles in the offence. The Crown appealed the sentences imposed, arguing they were manifestly inadequate. The appeal centred on the determination of the appropriate non-parole period, with the Crown contending that the sentences did not reflect the objective seriousness of the crime.

The key legal issues before the court were whether the objective criminality of the offence warranted a longer non-parole period and if the sentences imposed were manifestly inadequate. The court needed to balance the principle of parity between co-offenders with the objective assessment of the crime's severity. The appellants argued that the sentences should reflect their subjective circumstances, while the Crown insisted on an objective assessment based on the nature of the crime.

The court held that the objective criminality of the offence was indeed at least mid-range, necessitating a longer non-parole period. While the wife's case for a lesser sentence was strong, the court found that the sentences did not adequately reflect the objective criminality of the crime. The court determined that the sentences imposed were manifestly inadequate and varied them accordingly. The new sentences were set to ensure that the non-parole periods were commensurate with the gravity of the offence.

Orders