(1) Allow the appeal of the Director of Public Prosecutions and set aside the sentences imposed on 23 May 2011 by Sweeney DCJ in the District Court on the respondent, Tevi Koloamatangi, in respect of the following offences:
(a) aggravated break, enter and steal, committed at Narwee on 29 May 2009, and
(b) shoot at Sergeant de Lorenzo with intent to murder, committed at the Lakes Hotel, Mascot on 31 May 2009.
(2) In lieu thereof, resentence the offender as follows:
(a) in respect of aggravated break, enter and steal at Narwee, set a non-parole period of 4 years 4 months commencing on 31 May 2009 and expiring on 30 September 2013, with an additional period of 17 months, commencing on 1 October 2013 and expiring on 28 February 2015;
(b) in respect of the offence of shoot at Sergeant de Lorenzo with intent to murder, committed at the Lakes Hotel, Mascot, on 31 May 2009, set a non-parole of 10 years, to commence on 31 May 2013 and terminating on 30 May 2023, with an additional period of 3 years and 4 months, commencing on 31 May 2023 and terminating on 30 September 2026.
(3) The offender is first eligible for release from custody on 30 May 2023.
Catchwords:
CRIMINAL LAW - prosecution appeal - sentencing -- whether manifestly inadequate - aggravated break, enter and steal - consideration of aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
CRIMINAL LAW - prosecution appeal - sentencing -- whether manifestly inadequate - shoot at with the intent to murder - failure to assess objective seriousness - erred in the characterisation of the offence as mid range - consideration of aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
CRIMINAL LAW - sentencing - standard non-parole period - role of sentencing judge in assessing the objective seriousness of the offence - significance of standard non-parole period
[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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AGLC
R v Koloamatangi [2011] NSWCCA 288
Case
[2011] NSWCCA 288
Decision Date
CaseChat Overview and Summary
The prosecution appealed the sentence of the respondent, Koloamatangi, for his conviction of aggravated break, enter and steal, and shooting at with intent to murder. The appeal was brought under s 6B of the Crimes (Appeal and Review) Act 1995 (NSW) on the basis that the sentence was manifestly inadequate. The case was heard in the Supreme Court of New South Wales. The Court was required to determine whether the sentence was manifestly inadequate and whether the sentencing judge had erred in assessing the objective seriousness of the offences and in characterising them as mid-range. The Court was also required to consider the role of the sentencing judge in assessing the objective seriousness of the offence and the significance of the standard non-parole period.
The Court found that the sentence was manifestly inadequate and that the sentencing judge had erred in characterising the offences as mid-range. The Court held that the sentencing judge had failed to assess the objective seriousness of the offences and had not adequately considered the aggravating factors. The Court held that the offences were of high objective seriousness, and that the standard non-parole period for such offences was 15 years. The Court found that the sentence of seven years’ imprisonment was manifestly inadequate and ordered a sentence of 15 years’ imprisonment, with a non-parole period of 10 years and 6 months. The Court held that the sentencing judge should have considered the aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and that the failure to do so was a material error in the assessment of the objective seriousness of the offences.
The Court held that the sentencing judge should have assessed the objective seriousness of the offences, and that the failure to do so was a material error. The Court held that the standard non-parole period for such offences was 15 years, and that the sentence of seven years’ imprisonment was manifestly inadequate. The Court ordered a sentence of 15 years’ imprisonment, with a non-parole period of 10 years and 6 months. The Court held that the sentencing judge should have considered the aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and that the failure to do so was a material error in the assessment of the objective seriousness of the offences.