NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Frank Waqa (No 2) [2005] NSWCCA 33
FILE NUMBER(S):
2004/2032
HEARING DATE(S): 11 February 2005
JUDGMENT DATE: 24/02/2005
PARTIES:
Regina v Frank Waqa (No 2)
JUDGMENT OF: Dunford J Simpson J Hidden J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
G Rowling - Crown
H Dhanji - Respondent
SOLICITORS:
S Kavanagh - Crown
S O'Connor - Respondent
CATCHWORDS:
CRIMINAL LAW - Sentencing - discount on account of assistance - failure to fulfill undertaking - Crown appeal - calculation of discount allowed for future assistance - application to re-open proceedings - whether sentence imposed "contrary to law" - methods of calculating multiple discounts - WORDS and PHRASES - "contrary to law"
LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
DECISION:
Application dismissed
JUDGMENT:
- 1 -
IN THE COURT OF
CRIMINAL APPEAL
2004/2032
DUNFORD J
SIMPSON J
HIDDEN J24 FEBRUARY 2005
REGINA v FRANK WAQA (No 2)
Judgment
DUNFORD J: On 29 August 2003 in the District Court at Parramatta, his Honour Judge Ellis sentenced the applicant, Frank Waqa, to various terms of imprisonment after he adhered to pleas to guilty previously entered in the Local Court in respect of 12 counts of robbery whilst armed with an offensive weapon. In addition, 12 similar offences and one of attempted robbery were taken into account on a Form 1.
In sentencing the applicant and a co-offender, his Honour said that he was allowing a discount “in the order of 25 per cent” on account of their early pleas and a discount “in the order of 20 per cent” on account of their assistance to the authorities.
The sentences imposed on the applicant at first instance amounted to an effective total sentence of imprisonment of 7 years and 6 months with an effective non-parole period of 4 years and 4 months.
Subsequently, the applicant failed to honour his undertaking to give evidence against a co-offender named by him and on an application by the Crown pursuant to s 5DA of the Criminal Appeal Act 1912, this Court on 26 November 2004 increased his sentence to an effective total 10 years with a total non-parole period of 5 years 6 months: R v Waqa [2004] NSWCCA 405.
The applicant has now applied to this Court pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 to re-open the proceedings and impose lesser sentences on the ground that the sentences imposed were “contrary to law” in that the Court erred in the manner in which it assumed the discount for assistance had been calculated. Accordingly, the argument goes, the time added to the former sentences was in excess of the time allowed for future assistance and so was in excess of that authorised under s 5DA, and therefore “contrary to law”. As to the scope of the section, see R v Finnie (No 2) [2004] NSWCCA…
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- AGLC
- R v Waqa (No 2) [2005] NSWCCA 33
- Case
- [2005] NSWCCA 33
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation and application of sentencing principles, particularly the discount for assistance and whether the trial judge correctly applied the law in calculating that discount. The court had to consider whether the trial judge's approach to calculating the discount was consistent with established legal principles and whether the failure to fulfill the undertaking impacted the validity of the discount. The Crown argued that the sentence imposed was contrary to law, while Waqa contended that the sentence was appropriate.
The court held that the trial judge did not err in principle in calculating the discount for future assistance. The judge was entitled to consider the totality of Waqa's assistance in determining the appropriate discount. The court noted that the trial judge's approach to calculating the discount, while perhaps not ideal, did not render the sentence contrary to law. The court also rejected the argument that the sentence imposed was contrary to law due to the failure to fulfill the undertaking, as the discount had already been applied at the time of sentencing. The appeal was dismissed, and the original sentence was affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: DUNFORD J
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