R v Tyrone Chishimba, Tyrone Chishimba v R, Likumbo Makasa v R, R v Likumbo Makasa, Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga

[2011] NSWCCA 212

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tyrone Chishimba, Tyrone Chishimba v R, Likumbo Makasa v R, R v Likumbo Makasa, Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2011] NSWCCA 212
Hearing dates:	6 August 2010
Decision date:	13 September 2011
Before:	Macfarlan JA at 1, James J at 2, McCallum J at 18
Decision:	Crown appeal is dismissed in so far as it related to the sentences imposed on Makasa for the offences charged in counts 8, 10 and 16 of the indictment
Legislation Cited:	Crimes Act - ss 61J, 66C(3) Crimes (Sentencing Procedure) Act 1999 - s 59
Cases Cited:	Clinton v R [2009] NSWCCA 276
Category:	Principal judgment
Parties:	Regina (Appellant/Respondent) Tyrone Chishimba (Respondent/Appellant) Likumbo Makasa (Respondent/Appellant) Mumbi Peter Mulenga (Respondent/Appellant)
Representation:	P Leask (Appellant/Respondent - Crown) R J Button SC (Appellant/Respondent - Chishimba) B Rigg (Appellant/Respondent - Makasa) W P Lowe (Appellant/Respondent - Mulenga) S Kavanagh (Appellant/Respondent - Crown) McGowan Lawyers (Appellant/Respondent - Chishimba) Justin Lewis & Co Lawyers (Appellant/Respondent - Makasa) Bilias & Associates (Appellant/Respondent - Mulenga)
File Number(s):	2007/14576, 2007/14574, 2007/14575
Decision under appeal	Before: Armitage ADCJ File Number(s): 2007/11/0097

Judgment

1. MACFARLAN JA: The judgment of James J reflects my reasons for having joined in the Court's decision on 8 October 2010 to dismiss the Crown appeal against sentence, insofar as it related to sentences imposed on Makasa for the offences charged in counts 8, 10 and 16 of the indictment.

1. JAMES J: In these matters the members of the Court (Macfarlan JA, James J and McCallum J) delivered judgments on 8 October 2010 on appeals against conviction by Tyrone Chishimba, Likumbo Makasa and Peter Mulenga.

1. At a joint trial each of the three appellants had been found guilty on a charge under s 61J of the Crimes Act (which was count 1 in the indictment), of having had aggravated sexual intercourse without consent with the complainant, a female who at the time of the alleged offences (the night of 30-31 August 2006) was 15 years old. Makasa was also found guilty on three charges under s 66C(3) of the Crimes Act (which were counts 8, 10 and 16 in the indictment) of having had sexual intercourse on 31 August 2006 with the same complainant, she being above the age of 14 years and under the age of 16 years. The jury returned verdicts of not guilty on all the other charges in the indictment.

1. For the offence under s 61J of the Crimes Act each of the three appellants was sentenced to a term of imprisonment consisting of a non-parole period of three years and a balance of the term of three years, each sentence commencing on the date on which the particular appellant had been taken into custody. The sentence imposed on Makasa was ordered to commence on 4 March 2008. For each offence under s 66C(3) of the Crimes Act Makasa was sentenced to a term of imprisonment consisting of a non-parole period of one year commencing on 3 September 2010 and a balance of the term of one year, the three sentences to be served concurrently.

1. In the judgments delivered on 8 October 2010 the Court by majority (Macfarlan JA, James J agreeing with Macfarlan JA; McCallum J dissenting) allowed the appeals by all three appellants against their convictions for the offences charged in Count 1 of the indictment. No appeal had been brought by Makasa against his convictions for the offences charged in counts 8, 10 and 16 of the indictment.

1. The Crown had brought an appeal against the sentences imposed on each of the appellants for the offences charged in count 1 of the indictment and against the sentences imposed on Makasa for the offences charged in counts 8, 10 and 16 of the indictment. In his judgment of 8 October 2010 Macfarlan JA dealt with the Crown appeal against sentence at paragraphs 174 to 176, where his Honour said:

"174 As the conviction of the appellants on Count 1 should be quashed, the Crown's appeal against the inadequacy of the sentences relating to those convictions does not arise.

175 As Makasa did not appeal in relation to his convictions on Counts 8, 10 and 16, the Crown appeal contending that the sentence relating to those Counts was manifestly inadequate needs to be considered. The sentence imposed by the judge was imprisonment for a term of two years consisting of a non-parole period of one year commencing from 3 September 2010 and expiring on 2 September 2011, with a balance of term of one year expiring on 2 September 2012. In my view, for reasons that will be published separately, the Crown's contentions as to the inadequacy of this sentence should be rejected and the Crown appeal dismissed.

176 In light of my view that Makasa's conviction on Count 1 should be quashed, his sentence in relation to Counts 8, 10 and 16 should be varied pursuant to s 59 Crimes (Sentencing Procedure) Act 1999 so as to commence on 4 March 2008 rather than 3 September 2010. The effect of this variation is that Makasa has already served the full term (and more) of his sentence."

1. On 8 October 2010 orders of the Court were made as proposed by Macfarlan JA in his Honour's judgment, including orders varying the date of commencement of the sentences on counts 8, 10 and 16 and dismissing the Crown appeal against sentence with reasons to be published subsequently.

1. No reasons have in fact been published for the dismissal of the Crown's appeal against sentence. This oversight having been drawn to the Court's attention, I will now state my reasons for having joined in the Court's decision that the Crown appeal against the sentences imposed on Makasa on counts 8, 10 and 16 should be dismissed.

1. In its submissions on the Crown appeal against sentence the Crown relied on a general ground of appeal that all the sentences imposed on the three respondents to the Crown appeal were manifestly inadequate and also on five specific grounds of appeal.

1. As was to be expected, the Crown's submissions in support of its appeal concentrated on the sentences imposed for the offences under s 61J of the Crimes Act . All of the three respondents to the Crown appeal had been sentenced for an offence under s 61J, whereas only Makasa had been sentenced for offences under s 66C(3). The offences under s 61J for which the respondents had been sentenced were clearly more serious than the offences under s 66C(3) for which only Makasa had been sentenced. There is a standard non-parole period of ten years for an offence under s 61J of the Crimes Act and the non-parole period of three years set by the sentencing judge in sentencing all of the respondents departed considerably from the standard non-parole period. There is no standard non-parole period for an offence under s 66C(3).

1. Of the five specific grounds of appeal the first ground of appeal, that the sentencing judge had failed to determine where the offences under s 61J lay in the range of objective seriousness for offences of that type, related only to the sentences for the offences under s 61J. Likewise, the second ground of appeal, that the sentencing judge had incorrectly double counted subjective features, by using them as justifying a departure from the standard non-parole period and then using the same features to find special circumstances, also related only to the sentences for the offences under s 61J. The fifth ground of appeal, that the sentencing judge had erred in not taking into account as an aggravating factor that Makasa had committed the offences while on conditional liberty was, at least primarily, directed to the sentence imposed on Makasa for the offence under s 61J. It is clear from the sentencing judge's remarks on sentence that his Honour was aware of this factor. The fifth ground of appeal was based on a statement by the sentencing judge in his remarks on sentence that he would not, on account of this factor, differentiate between Makasa and the other offenders when sentencing for the offences under s 61J.

1. The remaining specific grounds of appeal did relate to both the sentences for the offences under s 61J and the sentences for the offences by Makasa under s66C(3). The third ground of appeal was that the sentencing judge in sentencing for each offence had erred in the extent to which he had varied "the statutory ratio" between the non-parole period and the balance of the term. Having regard to the wide discretion vested in a sentencing judge in determining whether to find special circumstances and in determining to what extent he should depart from "the statutory ratio", I would not uphold this ground of appeal.

1. The fourth ground of appeal was that the sentencing judge had erred in adopting a mathematical approach to the issue of protective custody. There was some evidence in the proceedings on sentence that the three respondents had been subject to some form of protective custody. In his remarks on sentence the sentencing judge said that he accepted a submission that, as a general principle, every year in protective custody should be regarded as equivalent to 18 months in general custody.

1. However, it has been held by this Court that it is not appropriate for a sentencing court to adopt a mathematical formula to convert time spent in some form of protective custody to what would be an equivalent period spent in the general prison population. Clinton v R [2009] NSWCCA 276 at [25]. I am, accordingly, of the opinion that the fourth ground of appeal should be upheld. However, it would still be appropriate to make some allowance for Makasa having to serve his sentences in some form of protective custody. Even if no allowance was made on the basis of Makasa being in protective custody and his sentences were increased by a factor of 50 per cent, the non-parole periods of his sentences, after regard was had to the changed commencement date of the sentences, would still have expired more than a year before 8 October 2010.

1. There remains the general ground of appeal that the sentences imposed on Makasa for the offences unde s 66C(3) were manifestly inadequate. The sentences were lenient but I do not consider that they were below the lower limit of the range of sentences within a proper exercise of his Honour's sentencing discretion. The maximum sentence for an offence under s 66C(3) is ten years. There is no standard non-parole period. Makasa's three offences were committed on the same day within a few hours of each other. The complainant was aged 15 years and some months at the time of the offences.

1. A further matter is that Makasa had admitted having sexual intercourse with the complainant on the three occasions which gave rise to the three convictions and, without his admissions, the Crown might not have been able to obtain convictions. Two further charges under s 66C(3), in relation to which Makasa had not made any admission, resulted in verdicts of not guilty.

1. The above are my reasons for having joined in the Court's decision on 8 October 2010 to dismiss the Crown appeal against sentence, insofar as it related to the sentences imposed on Makasa for the offences charged in counts 8, 10 and 16 of the indictment.

1. McCALLUM J: As stated in my judgment delivered on 8 October 2010, since I was in dissent as to the determination of the conviction appeals, it was unnecessary to consider the Crown appeal other than on the premise that the convictions of all three appellants on count one were to be quashed. On that premise, I agreed with Macfarlan JA as to the determination of the Crown appeal. The judgment of James J reflects my reasons for joining in the orders of the Court to dismiss that appeal insofar as it related to the sentences imposed on Makasa for the offences charged in counts 8, 10 and 16 of the indictment.

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Decision last updated: 13 September 2011