R v Takau - [2003] NSWCCA 181

CITATION: R v Takau [2003] NSWCCA 181

HEARING DATE(S): 20 June 2003

JUDGMENT DATE:
20 June 2003

JUDGMENT OF: Hodgson JA at 1, 37; Simpson J at 2; Greg James J at 36

DECISION: (i) leave to appeal granted; (ii) non-parole period varied from two years and nine months to two years, otherwise sentence is confirmed; (iii) the sentence and non-parole period to commence on 23 July 2002; (iv) the applicant to be eligible for release on parole on 22 July 2004; (v) recommend release on parole be on condition that there be supervison by the Probation and Parole Service for as long as it thinks appropriate.

CATCHWORDS: application for leave to appeal against sentence - plea of guilty - parity - subjective circumstances - remarks on sentence - juvenile co-offender

LEGISLATION CITED: Crimes (Setencing Procedure) Act 1999 (NSW), s44
Children's (Criminal Proceedings) Act 1997 (NSW), s33

CASES CITED: R v Colgan [1999] NSWCCA 292
R v Ellis and Carr [2002] NSWCCA 211

PARTIES :
Crown - Respondent
Gethsemane Mani Takau - Applicant

FILE NUMBER(S): CCA 60078/03

COUNSEL: DML Woodburne - Crown
N Mikhaiel - Respondent

SOLICITORS: SE O'Connor - Crown
J Harris - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0536

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

60078/03

HODGSON JA
SIMPSON J
GREG JAMES J
Friday 20 June 2003

REGINA v Gethsemane Mani TAKAU

Judgment

1 HODGSON JA: The court is in a position to give a decision now and I will ask Justice Simpson to give the first judgment.

2 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 25 July 2002 following his plea of guilty to a charge of maliciously inflicting grievous bodily harm. The maximum sentence applicable to the offence is imprisonment for seven years. The sentence imposed upon the applicant is one of imprisonment for a term of four years with a non-parole period of two years and nine months.

3 The offence committed by the applicant was particularly serious. Early in the evening of 20 October 2001 (a Saturday) he and a juvenile co-offender attended a birthday party at Millers Point in Sydney. At about 10.00pm an incident occurred that involved a conversation on a mobile phone, the details of which are not clear and probably not important, save that this appears to have been the circumstance that precipitated the later events.

4 Shortly after, another person, Sarvendra Thapa, arrived. The applicant accused him, in a hostile fashion, of having been the person on the telephone and the two men, together with others, engaged in a physical fight which was broken up by the host of the party, Ben Burgess. Thapa and two friends ran off, and made their way to the Town Hall and the Queen Victoria Building.

5 There, just before midnight, they encountered the applicant and Lee and another man. All three approached Thapa's group. At this time the applicant was punching himself in the chest 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 Takau

Details

AGLC: R v Takau [2003] NSWCCA 181
Case: [2003] NSWCCA 181
Decision Date: 20 June 2003

CaseChat Overview and Summary

In the case of R v Takau, the defendant sought leave to appeal against his sentence imposed following a guilty plea. The court was required to determine whether the sentence was disproportionate given the defendant's subjective circumstances and the remarks made during sentencing. The defendant was convicted alongside a juvenile co-offender, which also played a role in the appeal.

The central legal issue revolved around the principle of parity in sentencing and whether the sentence imposed was appropriate given the defendant's subjective circumstances, including his plea of guilty. Additionally, the court needed to consider the remarks made by the sentencing judge about the defendant's role and the impact of these remarks on the overall sentence. The defendant argued that the sentence was disproportionate and that the subjective circumstances, particularly his plea of guilty and the presence of a juvenile co-offender, warranted a more lenient sentence.

The court analysed the principle of parity, which requires that similar offenders be treated similarly unless there are compelling reasons for a different sentence. The court acknowledged the defendant's plea of guilty and the presence of the juvenile co-offender as mitigating factors. However, the court found that the remarks made by the sentencing judge, which highlighted the defendant's significant role in the offence, justified the sentence imposed. The court concluded that the sentence was proportionate and did not breach the principle of parity, leading to the dismissal of the appeal.

The court ordered that the defendant's application for leave to appeal against his sentence be dismissed. The sentence imposed by the lower court was upheld, with no further orders made.

Orders