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Ramea v The Queen

Ramea v The Queen

Case [2013] NSWCCA 310 9 December 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ramea v R [2013] NSWCCA 310
Hearing dates: 25 October 2013
Decision date: 09 December 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Latham J at [3]
Decision:
Application for extension of time within which to seek leave to appeal sentence refused.

Catchwords: CRIMINAL LAW - application for extension of time to seek leave to appeal sentence - plea of guilty - wounding with intent to cause grievous bodily harm - attack on taxi driver with glass - no explanation for delay - whether refusal of application would result in substantial injustice to applicant - whether trial judge adopted two-stage approach to sentencing and gave determinative weight to standard non-parole period - whether trial judge erred in assessment of objective gravity of offence and aggravating factors - whether sentence manifestly excessive - no Muldrock error - no failure on part of judge to take into account relevant matter - no material error in sentencing exercise - sentence not manifestly excessive - application refused
Legislation Cited: Crimes Act 1900
Cases Cited: Abdul v R [2013] NSWCCA 247
Aitchison v R [2012] NSWCCA 82
Aldous v R [2012] NSWCCA 153
Butler v R [2012] NSWCCA 23
Carroll v R [2012] NSWCCA 118
Markarian v The Queen [2005] HCA 25 ; 228 CLR 357
Mendes v R [2012] NSWCCA 103
Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120
Category: Principal judgment
Parties: Victor Ramea - (Applicant)
Regina - (Crown Respondent)
Representation: Counsel:
M King - (Applicant)
N Noman SC - (Crown Respondent)
Solicitors:
Legal Aid NSW - (Applicant)
Solicitor for Public Prosecutions - (Crown Respondent)

File Number(s): 2009/00004475
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-07-17 00:00:00

Before:

Conlon SC DCJ

File Number(s):

2009/11/0197

Judgment

HOEBEN CJ at CL : I agree with Latham J.

JOHNSON J : I agree with Latham J.

LATHAM J : The applicant, Victor Ramea, seeks an extension of time within which to seek leave to appeal a sentence imposed upon him by Conlon SC DCJ, following a plea of guilty to wounding with intent to cause grievous bodily harm contrary to s 33 (1)(a) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years and a standard non-parole period of 7 years.

The applicant was sentenced on 17 July 2009 to a non-parole period of 6 years with a balance of term of 3 years.

There has been no previous notice of intention to appeal in respect of this matter. Putting to one side the ground asserting Muldrock error (Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120), there is no explanation for the delay of four years with respect to five further grounds of appeal now pressed on the application. The applicant claims error in the assessment of the objective gravity of the offence, error in finding that the offence was committed in company, error in treating 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 Ramea v The Queen

Details

AGLC: Ramea v The Queen [2013] NSWCCA 310
Case: [2013] NSWCCA 310
Decision Date: 09 December 2013

CaseChat Overview and Summary

The case of Ramea v The Queen involved an application by the respondent for an extension of time to seek leave to appeal against a sentence imposed by the trial judge. The respondent had pleaded guilty to a charge of wounding with intent to cause grievous bodily harm, following an attack on a taxi driver with a glass. The trial judge imposed a sentence that the respondent sought to challenge. The respondent did not provide any explanation for the delay in making the application. The High Court of Australia was required to decide whether the refusal of the application would result in substantial injustice, whether the trial judge erred in the sentencing process, and whether the sentence was manifestly excessive.

The court first considered whether the refusal of the application would result in substantial injustice. The court found that the respondent had failed to provide any explanation for the delay, and thus could not satisfy the substantial injustice test. The court then examined whether the trial judge had erred in the sentencing process. The court found that the trial judge had adopted a two-stage approach and had given determinative weight to the standard non-parole period, which was not a material error. The court also found that the trial judge had correctly assessed the objective gravity of the offence and the relevant aggravating factors, and that the sentence was not manifestly excessive. The court held that there was no Muldrock error and no failure on the part of the judge to take into account a relevant matter.

In light of the above, the court dismissed the application for an extension of time to seek leave to appeal the sentence. The court found that the refusal of the application would not result in substantial injustice and that there was no material error in the sentencing exercise. The court held that the sentence was not manifestly excessive and that there was no basis for the respondent to seek leave to appeal. The court therefore dismissed the application and upheld the sentence imposed by the trial judge. The orders of the court were that the application for an extension of time to seek leave to appeal be dismissed, and that the sentence imposed by the trial judge be upheld.

Orders