R.V. Wate - [2001] NSWCCA 474

CITATION: R.V. WATE [2001] NSWCCA 474

FILE NUMBER(S): CCA 60692/00

HEARING DATE(S): 19 November 2001

JUDGMENT DATE:
19 November 2001

PARTIES :

Vula WATE - Appellant
Regina - Respondent

JUDGMENT OF: Barr J at 1; Adams J at 31

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/71/0006

LOWER COURT JUDICIAL
OFFICER : Latham DCJ

COUNSEL : Mr P.M. Winch for the appellant
Mr L.M.B. Lamprati for the Crown

SOLICITORS: D.J. Humpreys for the appellant
S.E. O' Connor for the Crown

DECISION: See Judgment at Paragraph 30

60692/00

Barr J
Adams J

19 November 2001

Regina v Vula Wate

Judgment

1 Barr J: Vula Wate applies for leave to appeal against a conviction imposed upon him in the District Court. He pleaded guilty to one count of robbery in company with wounding. The maximum penalty for that office is twenty-five years’ imprisonment. Judge Latham sentenced him to imprisonment for eight years and fixed a non-parole period of four years.

2 On the night of 17 October 1997 not long after midnight, the applicant and two other young people, Voni Rahim and Christine Carbery, caught a taxi from a rank in Griffith. The driver was Mr Kevin Patrick Cunningham.

3 His statement makes chilling reading. He knew Ms Carbery but not the other two.Carbery sat in the front of the taxi and directed Mr Cunningham where to take the three of them. The other two sat in the back. When the taxi arrived at its destination the applicant and Rahim got out and went into some premises. Carbery stayed with the driver and asked him about the fare. Eventually she too left the taxi, pretending that she was going to get money to pay the fare. She returned and engaged Mr Cunningham in conversation. She sat in the front seat and kept asking him how much the fare was and, notwithstanding that he told her a number of times, continued to ask him. She became more aggressive.

4 Whilst Mr Cunningham was so diverted Rahim pulled open the driver's door of the taxi, switched off the motor and pulled the keys out of the ignition. At the same time the applicant got into the back seat and put his arms around Mr Cunningham's throat. The headlock prevented Mr Cunningham moving at all. His head was turned to the right and he was being choked.

5 Rahim had a large kitchen knife that he had apparently obtained from the premises they had entered. He demanded all Mr Cunningham's money. He poked the point of the knife into the right side of Mr Cunningham's stomach. He pushed it and it punctured the skin. He kept pushing it backwards and forwards. All the while the applicant was choking Mr Cunningham in the headlock. Mr Cunningham managed to raise his left hand to his throat in order to try to get some space to breathe. He pulled money out of his pockets and handed it to Rahim.

6 Carbery came to 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. Wate

Details

AGLC: R.V. Wate [2001] NSWCCA 474
Case: [2001] NSWCCA 474
Decision Date: 19 November 2001

CaseChat Overview and Summary

Vula Wate sought leave to appeal against his conviction and sentence for robbery in company with wounding, imposed by the District Court. The Crown accepted the appeal against sentence only. The primary legal issue was whether the sentence imposed was manifestly excessive or inadequate. Wate argued that the sentence was excessive because it did not sufficiently account for his unblemished criminal history, his role in the crime, and his pre-sentence custody. The Court of Criminal Appeal found that the sentence was not manifestly excessive. However, it found that the sentence did not account for the applicant’s pre-sentence custody, which amounted to 108 days. The Court granted leave to appeal, allowed the appeal, and quashed the original sentence. In its place, the Court sentenced Wate to imprisonment for eight years, with a non-parole period of four years, starting 108 days earlier. The Court held that the original sentence was not manifestly excessive when considered in isolation and in comparison to the sentences imposed on co-offenders. The Court found that the District Court had given adequate consideration to the relevant principles of sentencing, including disparity and deterrence.

Orders