Regina v Akari - [2002] NSWCCA 253

CITATION: REGINA v AKARI [2002] NSWCCA 253

FILE NUMBER(S): CCA 60706/99

HEARING DATE(S): 17 June 2002

JUDGMENT DATE:
17 June 2002

PARTIES :

Regina
Jean Akari

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 33; Blanch AJ at 34

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/2201

LOWER COURT JUDICIAL
OFFICER : Sides DCJ

COUNSEL : M C Ramage QC (Appellant)
G E Smith (Respondent)

SOLICITORS: Mark Rumore (Appellant)
S E O'Connor (Respondent)

CATCHWORDS: APPEAL AGAINST SEVERITY OF SENTENCE - armed robbery - whether adequate weight given to special circumstances when found - whether failure to give weight to mitigating subjective features of offender - APPEAL AGAINST SEVERITY OF SENTENCE - armed robbery - use and discharge of firearm - APPEAL AGAINST SEVERITY OF SENTENCE - particularisation of error on appeal - wide discretion reposed in sentencing judge

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION: Leave to appeal granted; Appeal dismissed.

- 6 -IN THE COURT OF

60706/99

SPIGELMAN CJ
SIMPSON J
BLANCH J
Monday 17 June 2002

REGINA v Jean AKARI

Judgment

1 SPIGELMAN CJ: The Appellant was convicted of four separate offences against s97(1) of the Crimes Act 1900 all committed within a short period of time on 1 July 1998. He pleaded not guilty but was convicted after trial.

2 Count 1 was an attempted armed robbery which occurred about 12.55 on 1 July 1998. George Sterry aged 78 and his 71 year old wife were walking along Western Street, Revesby, when the Appellant, a passenger in a white car that had pulled into the kerb, beckoned Mr Sterry over. When Mr Sterry approached the car the Appellant pointed a gun at him and demanded his wallet. Mr Sterry said that he didn’t have a wallet and walked away. Further demands for the wallet were made but Mr Sterry continued to walk away.

3 Mrs Sterry observed the number plate to be KCJ-141. She recorded this as soon as she got home. The number plate belonged to a car owned by the Appellant. Neither Mr nor Mrs Sterry saw the driver of the car.

4 Count 2 was an armed robbery that occurred about five minutes later when Mark Lack was walking in Polo Street, Revesby, a short distance from Western Street. A white Magna, driven by the Appellant with a female passenger, pulled up in the street on the opposite side of the road. The Appellant asked for directions to the railway station. Mr Lack crossed the road to assist. When he stopped to talk to the driver, a demand was made for his wallet and a gun produced.

5 Mr Lack did not have a wallet but handed over $10 and some personal papers out of fear. The Appellant told him to go behind the car or he would be shot. Mr Lack did as he was told. He too saw the number plate KCJ-141 as the car drove off. He wrote it down as soon as…

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 Regina v Akari

Details

AGLC: Regina v Akari [2002] NSWCCA 253
Case: [2002] NSWCCA 253
Decision Date: 17 June 2002

CaseChat Overview and Summary

The appellant was convicted of armed robbery and the use and discharge of a firearm during the course of that offence. He appealed against the severity of his sentence, contending that the sentencing judge did not adequately weigh the special circumstances of his case and failed to give sufficient weight to the mitigating subjective features of his character. The appeal centred on whether the judge's sentencing decision was unreasonable due to these perceived oversights.

The primary legal issues involved the appropriate weight to be given to special circumstances in sentencing and the correct approach to considering mitigating factors. The appellant argued that the sentencing judge did not sufficiently acknowledge the mitigating aspects of his background and personal circumstances, which should have resulted in a lesser sentence. The Crown, on the other hand, contended that the sentence was appropriate given the gravity of the crimes committed and that the judge had properly exercised their discretion in sentencing.

The court examined the sentencing decision in light of the statutory principles governing sentencing for serious offences such as armed robbery. It considered whether the sentencing judge had erred in failing to adequately weigh the special circumstances and mitigating factors presented. The court noted the wide discretion afforded to sentencing judges and held that the judge had appropriately considered the appellant's background and personal circumstances, albeit not in the manner the appellant had hoped. The court found that the sentence imposed was not manifestly excessive and dismissed the appeal against the severity of the sentence.

Orders