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R v Waqa (No 2)

R v Waqa (No 2)

Case [2005] NSWCCA 33 24 February 2005

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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 J
24 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…

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 Waqa (No 2)

Details

AGLC: R v Waqa (No 2) [2005] NSWCCA 33
Case: [2005] NSWCCA 33
Decision Date: 24 February 2005

CaseChat Overview and Summary

In the case of R v Waqa (No 2), the appellant, Waqa, faced a Crown appeal concerning his sentence. The original conviction was for offences involving violence and drug supply. The central issue was whether the sentence imposed was "contrary to law" due to the manner in which the court calculated the discount for Waqa's future assistance. The appeal focused on whether the trial judge appropriately applied the principles for determining the extent of the discount for assistance.

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