R v Nassif - [2004] NSWCCA 443

CITATION: Regina v Lagi [2004] NSWCCA 443

HEARING DATE(S): 03/12/04

JUDGMENT DATE:
8 December 2004

JUDGMENT OF: Mason P at 1; Barr J at 2; Hoeben J at 3

DECISION: Appeal against conviction dismissed.; Leave to appeal against severity of sentence granted, but appeal dismissed.

CATCHWORDS: CRIMINAL LAW: - conviction appeal - use an offensive weapon in company with intent to prevent lawful apprehension - whether available on evidence - inconsistent verdicts - sentence appeal - whether parity principle observed.

LEGISLATION CITED: Crimes Act 1900
Firearms Act 1996

CASES CITED: Mackenzie v The Queen (1996) 190 CLR 348
R v Thompson & Houlton (2000) 40 NSWLR 383

PARTIES :
Crown - Respondent
Meli Lagi - Appellant

FILE NUMBER(S): CCA 2004/1740

COUNSEL: R Toner SC - Appellant
D Howard SC - Crown

SOLICITORS: S Macedone - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70234/02

LOWER COURT
JUDICIAL OFFICER : Wood CJ at CL

2004/1740

MASON P
BARR J
HOEBEN J
Wednesday, 8 December, 2004

REGINA v Meli LAGI

Judgment

1 MASON P: I agree with Hoeben J.

2 BARR J: I agree with Hoeben J.

3 HOEBEN J:

Offences and conviction appeal
The appellant and John Taufahema on 20 August 2003 were each indicted before his Honour Justice Wood, Chief Judge at Common Law, and a jury in the Supreme Court of New South Wales on the following counts.

Count 1

Crimes Act

Count 2 (in the alternative to Count 1) that he on 27 March 2002 at Hillsdale in the State of NSW did, while in company use an offensive weapon with intent to prevent lawful apprehension.
(S33B(2) Crimes Act 1900 – maximum penalty imprisonment for 15 years.)

4 Each was indicted in relation to other counts to which pleas of guilty were entered in the course of the trial. These other counts are irrelevant to the conviction appeal and will be referred to in the sentence appeal.

5 It was always the Crown case that Sione Penisini was the person who fired the shots which killed Constable McEnallay. On 21 March 2003 he pleaded guilty to the murder of Constable McEnallay.

6 The Crown sought to establish the murder count against John Taufahema and the appellant upon two bases. The first was that the two accused had acted in a joint enterprise with Sione Penisini that, if faced with the possibility of being arrested, one of them would use a firearm with intent to prevent their arrest, and that the possibility was in the contemplation of the accused that in so using the firearm, the user would do so in such a way as to result in the death of or grievous bodily harm to the person attempting to arrest them.

7 The second basis relied upon by 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 Nassif

Details

AGLC: Regina v Lagi [2004] NSWCCA 443
Case: [2004] NSWCCA 443
Decision Date: 08/12/2004

CaseChat Overview and Summary

In the matter of R v Nassif, the appellant challenged his conviction and sentence in the Supreme Court of Victoria. The case arose from an incident where Nassif used an offensive weapon in the company of others with the intent to prevent his lawful apprehension. The court was tasked with determining whether the conviction was supported by the evidence, whether the verdicts were inconsistent, and whether the sentence adhered to the parity principle.

The primary legal issues before the court were whether the evidence was sufficient to support the conviction for using an offensive weapon in company with intent to prevent lawful apprehension, and whether the verdicts reached were consistent. Additionally, the court had to consider whether the sentence imposed complied with the principle of parity, ensuring that similar offences are punished similarly. These issues were pivotal in determining the outcome of both the conviction and sentence appeals.

The court meticulously examined the evidence presented and found it adequate to support the conviction, dismissing the argument regarding inconsistent verdicts. Furthermore, the court held that the sentence imposed was consistent with the principle of parity. Therefore, the conviction was upheld, and the sentence was affirmed. The court's decision was grounded in a thorough analysis of the evidence and legal principles applicable to the case.

The final orders of the court were that the appeal against the conviction was dismissed, and the appeal against the sentence was also dismissed. The conviction and the sentence remained unchanged, and Nassif's legal recourse was exhausted with this decision.

Orders