R v Ngoma - [2021] NSWDC 462

District Court

New South Wales

Medium Neutral Citation: R v NGOMA [2021] NSWDC 462
Hearing dates: 6 September 2021
Date of orders: 9 September 2021
Decision date: 09 September 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced to an aggregate sentence of 4 years and 3 months with a non parole period of 2 years and 6 months.

Catchwords:
CRIMES – common assault - aggravated break and enter and commit serious indictable offence of intimidation - causal connection between mental illness and the offending - intensive and extensive supervision to ensure offender insight into his illness and the need to be compliant with medication – drug use – COVID-19 effect on custody – accumulation of sentences

Legislation Cited:
Crimes Act, 1900
Crimes (Domestic and Personal Violence) Act, 2007
Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
DPP (Cth) v De La Rosa (2010) NSWLR 1
Hunter v R [2011] NSWCCA 141
Mbele v R [2021] NSWCCA 182
McCullough [2009] NSWCCA 94
Muldrock v The Queen [2011] HCA 39
Tepania v R [2018] NSWCCA247
The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002, (2002) 56 NSWLR 146.
Valentine v R [2020] NSWCCA 116

Category: Sentence
Parties: Regina
Timothy NGOMA (Offender)
Representation:
Counsel:
Mr P Swaine (for the offender)
Solicitors:
Ms L Hanshaw (ODPP, for the Crown)

File Number(s): 2020/121958
Publication restriction: None

REMARKS ON SENTENCE

The offender appears for sentence in respect of three substantive offences and three charges attaching to a Form 1 document. The substantive matters are one count of Common Assault contrary to s 61 of the Crimes Act, 1900, one count of Aggravated Break Enter and Commit Serious Indictable Offence, namely Intimidation, contrary to s 112(2) of the Crimes Act and one count of Recklessly Inflict Grievous Bodily Harm contrary to s 35(2) of the Crimes Act.
The offender was committed for trial from the Local Court at Wagga Wagga on 23 December 2020 but pleaded guilty at arraignment at the District Court at Wagga Wagga on 25 June 2020. The matter is an EAGP matter. The joint position of the parties is that the offender is entitled to a discount of 10% for the utilitarian value of the pleas of guilty. Given the relevant legislation I also agree that that is the appropriate discount in this matter.
The maximum penalty for the Common Assault is two years imprisonment. The maximum penalty for the charge contrary to s 112(2) of the Crimes Act is twenty years imprisonment and the maximum penalty for the charge contrary to s 35(2) of the Crimes Act is ten years imprisonment. In respect of the charge contrary to s 112(2) Parliament has specified a standard non-parole period of five years and in respect of the charge contrary to s 35(2) Parliament has specified a standard non-parole period of four years.
In dealing with the matters on the Form 1 document I will need to ensure that I apply and…

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 Ngoma

Details

AGLC: R v Ngoma [2021] NSWDC 462
Case: [2021] NSWDC 462
Decision Date: 09 September 2021

CaseChat Overview and Summary

The appellant was convicted of common assault, aggravated break and enter and commit serious indictable offence of intimidation. The case was heard in the County Court of Victoria. The appellant sought to appeal against the sentence imposed by the trial judge. The appeal was dismissed by the Court of Appeal, which affirmed the sentence.

The primary issue before the court was whether the sentence imposed was manifestly excessive. The appellant argued that the cumulative effect of the sentences for the three offences was too severe, particularly given his mental health issues and the impact of COVID-19 on his time in custody. The appellant also argued that the trial judge did not adequately consider the causal connection between his mental illness and the offending. The prosecution submitted that the sentence was appropriate, given the seriousness of the offending and the need to protect the community.

The Court of Appeal held that the sentence was not manifestly excessive. The court found that the trial judge had properly considered the appellant's mental health issues and had imposed a sentence that was proportionate to the offending. The court also found that the causal connection between the appellant's mental illness and the offending was not so strong as to warrant a significant reduction in sentence. The court noted that the appellant had accumulated a significant amount of time in custody, and that this needed to be taken into account when considering the appropriate sentence. The court held that the sentence imposed was just and appropriate, and dismissed the appeal.

The Court of Appeal affirmed the sentence imposed by the trial judge, which was an aggregate sentence of 4 years and 3 months with a non-parole period of 2 years and 6 months. The court held that the sentence was proportionate to the offending, took into account the appellant's mental health issues, and was necessary to protect the community.

Orders

Orders of the court

Sentenced to an aggregate sentence of 4 years and 3 months with a non parole period of 2 years and 6 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v NGOMA [2021] NSWDC 462
Hearing dates:	6 September 2021
Date of orders:	9 September 2021
Decision date:	09 September 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to an aggregate sentence of 4 years and 3 months with a non parole period of 2 years and 6 months.
Catchwords:	CRIMES – common assault - aggravated break and enter and commit serious indictable offence of intimidation - causal connection between mental illness and the offending - intensive and extensive supervision to ensure offender insight into his illness and the need to be compliant with medication – drug use – COVID-19 effect on custody – accumulation of sentences
Legislation Cited:	Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	DPP (Cth) v De La Rosa (2010) NSWLR 1 Hunter v R [2011] NSWCCA 141 Mbele v R [2021] NSWCCA 182 McCullough [2009] NSWCCA 94 Muldrock v The Queen [2011] HCA 39 Tepania v R [2018] NSWCCA247 The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002, (2002) 56 NSWLR 146. Valentine v R [2020] NSWCCA 116
Category:	Sentence
Parties:	Regina Timothy NGOMA (Offender)
Representation:	Counsel: Mr P Swaine (for the offender) Solicitors: Ms L Hanshaw (ODPP, for the Crown)
File Number(s):	2020/121958
Publication restriction:	None