R v Mako

Case [2004] NSWCCA 90 7 April 2004

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CITATION: Regina v Keri Damon Mako [2004] NSWCCA 90 revised - 1/07/2004

HEARING DATE(S): 22 March 2004

JUDGMENT DATE:
7 April 2004

JUDGMENT OF: Studdert J at 32; James J at 33; Dunford J at 1

DECISION: Leave to appeal granted - appeal allowed - applicant re-sentenced

CATCHWORDS: Criminal Law - Sentencing - maliciously inflict grievous bodily harm - form of sentence - utilitarian value of plea of guilty

LEGISLATION CITED: Crimes Act 1900 s 35
Crimes (Sentencing Procedure) Act 1999 ss 3A, 21, 44
Crimes (Sentencing Procedures Amendment (Standard Minimum Sentencing) Act 2002
Criminal Appeal Act 1912 s 6

CASES CITED: R v Galati [2003] NSWCCA 148
R v Glen (CCA - 19 December 1994)
R v Hansen [2002] NSWCCA 321
R v Lloyd at [2003] NSWCCA 49
R v Rowe (1996) A Crim R 467
R v Thomson [2000] NSWCCA 309, 49 NSWLR 383

PARTIES :
Regina v Keri Damon Mako

FILE NUMBER(S): CCA 60449/03

COUNSEL: G I O Rowling (Crown)
H L A Cox (Appellant)

SOLICITORS: S E O'Connor (Crown)
Legal Aid Commission (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0034

LOWER COURT
JUDICIAL OFFICER : Cooper DCJ

- 8 -

60449/03

STUDDERT J
JAMES J
DUNFORD J

REGINA v KERI DAMON MAKO

Judgment

1 DUNFORD J: This is an appeal by Keri Damon Mako against the sentence of imprisonment for 3 years with a non-parole period of 2 years imposed upon him by his Honour Judge Cooper in the District Court at Gosford on 27 March 2003 following his plea of guilty to one count of maliciously inflict grievous bodily harm, contrary to s 35(1)(b) of the Crimes Act 1900 which offence carries a maximum penalty of imprisonment for 7 years. The sentence was backdated to 5 November 2002; to take account of pre-sentence custody.

2 The facts were that on the evening of 4 November 2002, the applicant attended a party at Kincumber with his brother, Paul Mako, and his brother’s girlfriend, Sonja Lewin, where the applicant and his brother consumed a considerable amount of alcohol and smoked marijuana. The three of them left the party at approximately 1:00am the following morning intending to return to the Mako home in Umina.

3 On the way, an argument developed between the applicant and his brother, who was driving, and at one stage, they got out of the car and had a fight. They then resumed their journey, the argument resumed, the brother driving the car, Ms Lewin in the front passenger seat and the applicant sitting behind her.

4 As the argument continued, the applicant picked up a pair of scissors that were on the back seat of the car, put them in front of Ms Lewin’s neck and cut her throat, causing a laceration some 10 centimetres long which required 10 sutures. Although he initially decamped from the scene, the applicant was shortly afterwards arrested, and when interviewed he made full admissions. He stated that he cut 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 Mako

Details

AGLC: R v Mako [2004] NSWCCA 90
Case: [2004] NSWCCA 90
Decision Date: 7 April 2004

CaseChat Overview and Summary

In the case of R v Mako, the appellant was convicted of inflicting grievous bodily harm with intent. The case was heard in the High Court of Australia. The central issue in this appeal was whether the trial judge had given adequate weight to the appellant's guilty plea when determining the sentence. The appellant argued that the trial judge had failed to sufficiently consider the benefits of the guilty plea, which included saving the victim and the community the trauma of a trial and acknowledging the appellant's remorse and willingness to accept responsibility.

The High Court considered the legal principles surrounding the sentencing of a person who has pleaded guilty. The court examined the relevant authorities and established principles that require a sentencing judge to take into account the advantages of a guilty plea, such as the saving of public resources, the avoidance of further trauma to the victim, and the offender's acceptance of responsibility. The court held that, in this case, the trial judge had failed to adequately consider the utilitarian value of the appellant's guilty plea, and therefore the sentence was excessive.

As a result of the court's decision, the case was remitted to the trial judge for resentencing. The High Court emphasised the importance of considering the benefits of a guilty plea when determining an appropriate sentence. The court did not specify the precise sentence to be imposed but directed that the trial judge must take into account the appellant's guilty plea and its advantages when determining the appropriate punishment. The case serves as a reminder to trial judges of the importance of properly considering the advantages of a guilty plea in the sentencing process.

Orders