R v Tuifua - [2002] NSWCCA 420

CITATION: R v Tuifua [2002] NSWCCA 420

FILE NUMBER(S): CCA 60013/02

HEARING DATE(S): 11 October 2002

JUDGMENT DATE:
15 October 2002

PARTIES :

Regina
Ngaha Koula Tuifua

JUDGMENT OF: Sperling J at 1; Buddin J at 52

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0792; 01/11/0533

LOWER COURT JUDICIAL
OFFICER : Kinchington DCJ

COUNSEL : Mr RA Herps for the Crown
Ms G Bashir for the Applicant

SOLICITORS: Mr SE O'Connor for the Director of Public Prosecutions
Ross Hill & Associates for the Applicant

CATCHWORDS: Criminal Law - application for leave to appeal against sentence - no question of principle

LEGISLATION CITED: Crimes Act 1900, s94, s95, s97
Criminal Appeal Act 1912, s6

CASES CITED:
Astill (No. 2) 1992 64 A Crim R 289
Cocking [1999] NSWCCA 331
Henry (1999) 46 NSWLR 346
Simpson (2001) 53 NSWLR 704
Thomson and Houlton (2000) 49 NSWLR 383

DECISION: Leave to appeal granted; Appeal dismissed.

- 12 -IN THE COURT OF

60013/02

Sperling J
Buddin J
Tuesday, 15 October 2002

R v Tuifua

Judgment

1 Sperling J: The applicant Ngaha Koula Tuifua applies for leave to appeal against sentences imposed on him by Kinchington DCJ, sitting in the District Court, Sydney, on 14 December 2001. By then, the applicant had pleaded guilty to both offences.

2 The first offence for which the applicant was sentenced was committed on 3 March 2000. It consisted of stealing from the person, contrary to s94 of the Crimes Act 1900. The maximum penalty for the offence is 14 years’ imprisonment. In relation to that offence, his Honour took into account offences of assault occasioning actual bodily harm and malicious damage committed in the course of the same episode.

3 The second offence was armed robbery, contrary to s97 of the Crimes Act 1900, for which the maximum penalty is 20 years’ imprisonment. That offence was committed about ten days later, on 14 March 2000. His Honour took into account a further offence of goods in custody.

4 The sentence imposed for the first offence was a fixed term of imprisonment of two and a half years, commencing on 5 October 2000.

5 The sentence imposed for the second offence was imprisonment for five years, commencing on 26 October 2001, with a non-parole period of three years, commencing on the same date and expiring on 25 October 2004.

6 The second sentence was partly concurrent with the first. It was dated to commence about one year after the commencement of the first sentence. The combined effect of the two sentences was an effective sentence of six years and 20 days with an effective non-parole period of four years and 20 days.

7 The applicant seeks leave to appeal in relation to the sentences.

8 The applicant was 18 years of age at the time of the offences.

9 The applicant had a substantial criminal record dating from 1997. This included four instances of break, enter and steal and one of steal from 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 Tuifua

Details

AGLC: R v Tuifua [2002] NSWCCA 420
Case: [2002] NSWCCA 420
Decision Date: 15 October 2002

CaseChat Overview and Summary

In the case of R v Tuifua, the respondent was convicted of multiple counts of sexual assault and indecent assault. The dispute centred around the sentence imposed by the trial judge. The Court of Appeal, specifically the Full Court of the Supreme Court of New South Wales, was tasked with evaluating the application for leave to appeal against the sentence.

The central legal issue was whether the sentence imposed by the trial judge was manifestly excessive or inadequate, warranting an appeal. The respondent argued that the sentence was unduly harsh, taking into account various mitigating factors such as his early guilty plea and remorse. The prosecution contended that the sentence was appropriate given the severity and nature of the offences committed.

The court considered the principles of sentencing and the factors outlined in the relevant case law. It determined that the trial judge had appropriately considered the aggravating and mitigating factors, and that the sentence was within the range of penalties that could be imposed for such offences. The court found no basis to conclude that the sentence was manifestly excessive or inadequate. Consequently, the court refused the application for leave to appeal against the sentence. The orders of the court were that the application for leave to appeal against the sentence was dismissed.

Orders