R v Makisi - [2004] NSWCCA 333

Reported Decision:
151 A Crim R 245

New South Wales

Court of Criminal Appeal

CITATION: Regina v MAKISI [2004] NSWCCA 333

HEARING DATE(S): Wednesday 22 September 2004

JUDGMENT DATE:
22 September 2004

JUDGMENT OF: Spigelman CJ at 1; Barr J at 2; Hoeben J

DECISION: Appeal against conviction dismissed; leave granted to appeal against sentences; appeal dismissed.

PARTIES :
Regina v Manuel Arnean MAKISI

FILE NUMBER(S): CCA 2004/2117

COUNSEL: Appellant: J Stratton
Crown: G I O Rowling

SOLICITORS: Appellant: S O'Connor
Crown: S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0363

LOWER COURT
JUDICIAL OFFICER : Sorby DCJ

- 15 -

2004/2117 CCAP
(60341/04)

SPIGELMAN CJ
BARR J
HOEBEN J

WEDNESDAY 22 SEPTEMBER 2004

REGINA V Manuel Arnean MAKISI

Judgment

1 SPIGELMAN CJ: I agree with Barr J

2 BARR J: The appellant, Manuel Arnean Makisi, appeals against convictions entered up in the District Court and seeks leave to appeal against the resulting sentences. On 14 October 2003 he stood trial before a jury on charges that may be summarised as follows –

1 that on 31 May 2002 at Burwood, being in company with other persons, he assaulted Xing Zhou Liu with intent to rob him and at the time wounded him;

2 that at the same time and place he robed Rui Wang of a mobile telephone, a wallet and a sum of money in circumstances of aggravation in that corporal violence was used; and

3 that at the same time and place he robbed Qi-Ming Fan of a mobile telephone, a wallet and a sum of money in circumstances of aggravation in that corporal violence was used.

3 The jury found him guilty on all counts and the trial judge, Sorby DCJ, sentenced him on the second and third counts to imprisonment for fixed concurrent terms of four years and on the first count to imprisonment for five years with a non-parole period of three years. The five-year sentence commenced one year after the commencement of the fixed terms and the result was an overall sentence of six years with a non-parole period of four years.

4 Early on 31 May 2002 a group of about seven men, who had been drinking at Burwood Park since the previous evening, chased three other men and caught them outside the Telstra building in Burwood. They assaulted the three men and robbed two of them. They wounded the third. One of the attackers was described as being dark skinned and wearing a jersey with a number five on it. That was the brother of the appellant, John Makisi. The identifying witness telephoned the police, who attended the scene and found the appellant and John Makisi hiding in a laneway behind a paling fence. One of the police officers saw the appellant throw away a mobile telephone. That telephone was later identified as belonging to the complainant Qi-Ming Fan. The police noticed that the appellant smelled of alcohol and formed the view that he was moderately…

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 Makisi

Details

AGLC: R v Makisi [2004] NSWCCA 333
Case: [2004] NSWCCA 333
Decision Date: 22 September 2004

CaseChat Overview and Summary

The appellant, Manuel Arnean Makisi, appealed against his convictions entered up in the District Court and sought leave to appeal against the resulting sentences. The jury found him guilty of charges that included assault with intent to rob, and two counts of robbery with aggravation. The District Court judge sentenced him to imprisonment for fixed concurrent terms on two counts and a consecutive term on the first count, resulting in an overall sentence of six years with a non-parole period of four years. The appeal against conviction raised two grounds, the first being that the sentencing judge incorrectly directed the jury in relation to intoxication, and the second that the judge erred in not giving directions as to what use the jury could make of evidence of the appellant's good character. The court found that the reference to capacity, read in context, did not divert the jury from their task and that there was no proper basis upon which the evidence of intoxication could have produced any result on the second or third count different from that on the first. As to the second ground, the court found that the trial judge had made it clear that defence counsel could raise good character in a particular respect and that if he did the court would have to deal with it. However, defence counsel never did so, and it is not speculative to observe that counsel might have considered the evidence to be of little value in the overall case. Therefore, the appeal against conviction fails. As to the ground of appeal against sentence, the court found that the appellant could not have a legitimate sense of grievance by comparing his sentences with his brother's sentence, as his brother entered an early plea of guilty which entitled him to a substantial discount. Therefore, leave is granted to appeal against the sentences but the appeal is dismissed.

Orders