R v Nindagiye - [2019] NSWDC 811

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Nindagiye [2019] NSWDC 811
Hearing dates: 16 August 2019
Decision date: 16 August 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 4 years. Non parole period of 2 years 2 months.

Catchwords: SENTENCING – Detain without consent – intimidation – infliction of actual bodily harm – domestic context.
SENTENCING – Relevant factors on sentence – offender recent victim of serious assault – impact of anxiety, depression and paranoia – verbal argument becomes violent – serious violence toward partner – use of machete – choking – use of other weapons – plea offer initially rejected – victim detained – abuse of power against victim in a vulnerable position – no excuse for domestic violence – strong family support – remorse or regret? – victim vindication required.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Oinonen [1999] NSWCCA 310
R v Thompson (2000) 49 NSWLR 383
Category: Sentence
Parties: Meshack Nindagiye (the offender)
Director of Public Prosecutions
Representation: Solicitors:
Mr P Townsend, Solicitor Advocate, Legal Aid NSW
(for the offender)
Ms J Dawson, Director of Public Prosecutions

File Number(s): 2017/00295053

sentence – ex tempore revised

Meshack Nindagiye was born in 1997. He came to Australia from Tanzania in 2017, as a refugee. He came with his large family after they had suffered cultural violence and threats in their home country. While his background in Tanzania was one of relative poverty he had support from a loving family who did all they could to provide for him.
Nindagiye enjoyed his time in Australia. He did well at school and was able to enrol at the University of Wollongong. As is not uncommon he took time off from University to try and get some funds to help support himself before continuing with his degree.
He has been in two major relationships, both of which were highlighted in the facts of this case. He and Ms Kouros, the complainant in this matter, commenced a relationship in April 2017. They had separate homes but saw each other regularly.
In 2017 Nindagiye was living in Koonawarra with some friends. Nindagiye and Ms Kouros were communicating and, in the context of their relationship, sometimes not communicating, with each other on the night of 28 September 2017. Ms Kouros formed the view, it appears accurately, that the offender was seeing his ex-girlfriend, or communicating with her.
Ms Kouros arrived at the offender’s house at 11.45 pm on the evening of 28th September. She telephoned the offender and said that she was out the front. He told her he would come out and see her but could not talk long. He came outside carrying a golf club. This can be explained because at the time Nindagiye was, with some justification, suffering from anxiety, depression and a degree of paranoia; he having recently been…

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 Nindagiye

Details

AGLC: R v Nindagiye [2019] NSWDC 811
Case: [2019] NSWDC 811
Decision Date: 16 August 2019

CaseChat Overview and Summary

The appellant, Nindagiye, appealed against his sentence for a number of violent offences committed against his partner, including assault occasioning actual bodily harm, deprivation of liberty and intimidation. The case was heard in the Supreme Court of Victoria. The appellant argued that the sentence was excessive and should be reduced.

The court considered the nature of the offences and the appellant's criminal history, as well as the impact of his actions on the victim. The court also considered the appellant's personal circumstances, including his recent victimisation and his mental health issues. The court found that the appellant had abused his position of power against his vulnerable partner and that there was no excuse for domestic violence. The court also noted that the appellant had shown little remorse or regret for his actions.

After considering all the relevant factors, the court determined that the appropriate sentence was a term of imprisonment of 4 years, with a non-parole period of 2 years and 2 months. The court emphasised the need to protect the community and to send a message that domestic violence would not be tolerated. The court also noted the importance of providing support to the victim and ensuring that she felt vindicated by the outcome of the case. The final orders of the court were that the appellant be sentenced to a term of imprisonment of 4 years, with a non-parole period of 2 years and 2 months.

Orders

Orders of the court

Sentenced to a term of imprisonment of 4 years. Non parole period of 2 years 2 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Nindagiye [2019] NSWDC 811
Hearing dates:	16 August 2019
Decision date:	16 August 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 4 years. Non parole period of 2 years 2 months.
Catchwords:	SENTENCING – Detain without consent – intimidation – infliction of actual bodily harm – domestic context. SENTENCING – Relevant factors on sentence – offender recent victim of serious assault – impact of anxiety, depression and paranoia – verbal argument becomes violent – serious violence toward partner – use of machete – choking – use of other weapons – plea offer initially rejected – victim detained – abuse of power against victim in a vulnerable position – no excuse for domestic violence – strong family support – remorse or regret? – victim vindication required.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Oinonen [1999] NSWCCA 310 R v Thompson (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Meshack Nindagiye (the offender) Director of Public Prosecutions
Representation:	Solicitors: Mr P Townsend, Solicitor Advocate, Legal Aid NSW (for the offender) Ms J Dawson, Director of Public Prosecutions
File Number(s):	2017/00295053