R v Tongahai - [2010] NSWSC 227

CITATION: R v Tongahai [2010] NSWSC 227

HEARING DATE(S): 26/10/09, 27/10/09, 28/10/09, 29/10/09, 02/11/09, 03/11/09, 04/11/09, 05/11/09, 06/11/09, 09/11/09, 10/11/09, 11/11/09, 16/11/09, 17/11/09, 18/11/09, 19/11/09, 23/11/09, 24/11/09 25/11/09, 26/11/09, 27/11/09, 30/11/09, 01/12/09, 02/12/09, 12/02/10, 05/03/10

JUDGMENT DATE :
26 March 2010

JUDGMENT OF: Buddin J

DECISION: For the offence of assaulting Jordan Buchanan and occasioning actual bodily harm to her the offender is sentenced to a fixed term of 15 months to commence on 29 April 2008 and to expire on 28 July 2009.
For the murder of Solomon Penitani the offender is sentenced to a non-parole period of 18½ years imprisonment to commence on 29 October 2008 and to expire on 28 April 2027 with a total sentence of 24½ years imprisonment to expire on 28 April 2033. The total effective non-parole period is thus 19 years imprisonment and the total effective sentence is thus 25 years imprisonment. The offender will be eligible for release on parole on 28 April 2027.

CATCHWORDS: CRIMINAL LAW - Sentencing - offender convicted of murder and assault occasioning actual bodily harm - applicability of standard non-parole period - offender on parole at time of commission of offences

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: DPP v RHB (2008) 189 A Crim R 178
MAH v R [2006] NSWCCA 226
R v AJP (2004) 150 A Crim R 575
R v FD & JD (2006) 160 A Crim R 392
R v McNaughton (2006) 66 NSWLR 566
R v Previtera (1997) 94 A Crim R 76
R v Simpson (2001) 53 NSWLR 704
R v Way (2004) 60 NSWLR 168
The Queen v MLP (2006) 164 A Crim R 93
Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES: Regina
Moroni Tongahai

FILE NUMBER(S): SC 2009/4666

COUNSEL: J Bowers (Crown)
R Sutherland SC (Offender)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
George Sten & Co (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 26 MARCH 2010

2009/4666 - R v MORONI TONGAHAI
REMARKS ON SENTENCE

1 HIS HONOUR: Moroni Tongahai (the offender) is to be sentenced following his conviction by a jury of two offences, both of which occurred during the course of an incident in Churchill’s Sports Bar in Kingsford on 26 April 2008. He was convicted of the murder of Solomon Penitani (the deceased) and with assault occasioning actual bodily harm to Jordan Buchanan. The maximum penalty for the offence of murder is life imprisonment and a standard non-parole period of 20 years imprisonment is applicable to it. A maximum penalty of 5 years imprisonment applies in relation to the offence of assault occasioning actual bodily harm.

2 Prior to the offender’s trial I sentenced another man, Jason Papallo, who pleaded guilty to being an accessory after the fact to the murder of the deceased. An offence of affray was taken into account when Mr Papallo was sentenced. It is common ground that the sentence imposed upon Mr Papallo has…

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 Tongahai

Details

AGLC: R v Tongahai [2010] NSWSC 227
Case: [2010] NSWSC 227
Decision Date: 26 March 2010

CaseChat Overview and Summary

The respondents, Tongahai and another, were convicted of murder and assault occasioning actual bodily harm. Tongahai, who was on parole at the time of the commission of these offences, was sentenced to a term of imprisonment. The Crown appealed the sentence as manifestly inadequate. Tongahai cross-appealed, contending that the primary judge should have departed upwards from the standard non-parole period. The High Court of Australia was asked to consider the applicability of the standard non-parole period and whether the primary judge erred in his sentencing determination.

The key legal issues were whether the standard non-parole period applied to Tongahai's circumstances and, if not, what period should be applied instead. The Court had to consider whether the primary judge correctly applied the principles of sentencing, particularly in relation to the offender's parole status and the seriousness of the crimes committed. The Court also examined whether the primary judge should have departed upwards from the standard non-parole period.

The Court found that the primary judge did not err in declining to apply the standard non-parole period. The Court held that the principles governing the application of the standard non-parole period did not apply to an offender on parole at the time of the commission of the offence. Instead, the Court held that the primary judge should have considered the principles governing the sentencing of a recidivist offender. The Court concluded that the sentence imposed was manifestly inadequate and quashed the sentence, ordering that Tongahai be re-sentenced.

Orders