Regina v Paulo Nikau - [1999] NSWCCA 322

CITATION: Regina v Paulo NIKAU [1999] NSWCCA 322

FILE NUMBER(S): CCA 60745/98

HEARING DATE(S): 13 October 1999

JUDGMENT DATE:
13 October 1999

PARTIES :

Regina
Paulo Nikau

JUDGMENT OF: Sully J at 1; Ireland J at 15; Hidden J at 16

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70043/96

LOWER COURT JUDICIAL OFFICER: Barr J

COUNSEL: S. R. Norrish QC - Crown
R. D. Ellis - Applicant

SOLICITORS: T. A. Murphy - Crown
S. E. O'Connor - Applicant

CATCHWORDS:

ACTS CITED: Crimes Act

DECISION: Leave to appeal against sentence granted; by majority, appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL
60745/98
SULLY J
IRELAND J
HIDDEN J
13 October 1999

REGINA v Paulo NIKAU
JUDGMENT

1 SULLY J: SULLY J: On 30 October 1998 the present applicant, MrPaulo Nikau, stood for sentence before his Honour Justice Barr of this Court. He so stood for sentence having pleaded guilty to a charge of manslaughter and to a cognate charge of malicious wounding. He had been indicted originally upon an indictment charging him with murder, and separately with malicious wounding; and the Crown accepted a plea of not guilty of murder but guilty of manslaughter in discharge of the count charging murder. 2 The statutory maximum penalty for the offence of manslaughter is penal servitude for twenty five years. The statutory maximum penalty for malicious wounding, a contravention of s 35(a) of the Crimes Act, is penal servitude for seven years. 3 The learned sentencing Judge imposed upon the applicant in connection with the offence of manslaughter a sentence of penal servitude for twelve years. That sentence was apportioned between a minimum term of eight years and an additional term of four years. In respect of the malicious wounding offence his Honour imposed a fixed term of penal servitude for four years, dating that fixed term in such a way as to make it concurrent with the sentence imposed in respect of the manslaughter offence. 4 The applicant contends that the sentence thus imposed upon him is manifestly excessive and such as ought to be reviewed by this Court. 5 The relevant facts are within a small compass and can be taken conveniently from the remarks on sentence of Barr J:

"At about 9.30pm on Tuesday 28 November 1995 a number of young men, including one called Sautia and the brother of the prisoner, whom I shall call J N Norman, were in Lethbridge Park. Sautia and J N entered a shop to buy goods, and whilst they were there the staff asked three young men who were of Aboriginal descent to leave the premises. Sautia and J N took it upon themselves to escort the three men from the shop, and that was the cause of some resentment. A fight broke out. Sautia, J N, a man called Tarawa and others took part on one side of the fight. On the other side of the fight there were a number of young Aboriginal men, including 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 Regina v Paulo Nikau

Details

AGLC: Regina v Paulo Nikau [1999] NSWCCA 322
Case: [1999] NSWCCA 322
Decision Date: 13 October 1999

CaseChat Overview and Summary

The case of Regina v Paulo Nikau was heard in the Court of Criminal Appeal of New South Wales. Paulo Nikau was sentenced to twelve years in prison for manslaughter and four years for malicious wounding, with the sentences to run concurrently. The appellant argued that the sentence was manifestly excessive. The lower court had considered all relevant factors, but the appellant argued that the sentence did not adequately take into account his age, troubled background, and the social context of the offence. The appeal was heard by Sully, Ireland, and Hidden JJ.

The court considered the gravity of the crime, which involved the fatal stabbing of one person and the wounding of another during a public affray. The appellant had armed himself with a knife in preparation for the affray and had a prior record of menacing. The appellant argued that his actions were influenced by alcohol, drugs, and social conflict between Aboriginal Australians and people of Pacific Islander extraction. The court acknowledged the appellant's troubled background and youth but held that the sentence was not manifestly excessive.

The majority of the court, Sully and Ireland JJ, held that the sentence was not manifestly excessive and that the court had properly considered all relevant factors. Hidden J dissented, holding that the sentence did not adequately take into account the appellant's age, troubled background, and the social context of the offence. Hidden J would have reduced the sentence to ten years for manslaughter, with a minimum term of six years and an additional term of four years. The court granted leave to appeal but dismissed the substantive appeal by majority. The sentence was to remain as imposed by the lower court.

Orders