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Sabongi v R

Sabongi v R

Case [2015] NSWCCA 25 5 March 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sabongi v R [2015] NSWCCA 25
Hearing dates: 12 February 2015
Date of orders: 05 March 2015
Decision date: 05 March 2015
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Hamill J at [3]
Decision:
(1) Application for leave to appeal granted.
(2) Appeal allowed.
(3) The sentences imposed in relation to sequences 10, 5, 11, 13 and 2 are confirmed.
(4) The sentences imposed in respect of counts 1, 3 and 4 are confirmed.
(5) The sentence imposed in respect of count 7 is quashed and in lieu thereof impose a sentence compromising a non-parole period of 3 years and 3 months commencing 5 February 2016 and expiring on 4 May 2019 with a balance of term of 2 years and 9 months commencing 5 May 2019 and expiring on 4 February 2022.
(6) The applicant will be eligible for release to parole at the expiration of the non-parole period relating to count 7.

Catchwords: CRIMINAL LAW – sentence appeal – alcohol fuelled violence – separate offences of domestic violence – breach of bond – delay in sentencing – late plea of guilty – appropriate discount for late plea – accumulation of sentences – special circumstances – failure to adjust statutory ratio in relation to total effective sentence – where judge found special circumstances in factors other than accumulation – limited intervention in light of serious offending
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: AB v R [2014] NSWCCA 31
AI v R [2011] NSWCCA 95
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
Carroll v The Queen [2010] NSWCCA 55; 77 NSWLR 45
Cicekdag v R [2007] NSWCCA 218
CM v R [2013] NSWCCA 341
Fina’i v R [2006] NSWCCA 134
Heron v R [2006] NSWCCA 215
Hopley v R [2008] NSWCCA 105
Houri v R [2013] NSWCCA 279
House v The King [1936] HCA 40; 55 CLR 499
Johnson v The Queen [2004] HCA 15; 205 ALR 346; 78 ALJR 616
Kaminic v R [2014] NSWCCA 116
Khanchitanon v R [2014] NSWCCA 204
Lowe v The Queen [1984] HCA 46; 154 CLR 606MB v R [2013] NSWCCA 254
MH v R [2011] NSWCCA 230
Mulato v R [2006] NSWCCA 282
Pattalis v R [2013] NSWCCA 171
R v Borkowski [2009] NSWCCA 102
R v Carroll, Carroll v R [2010] NSWCCA 55
R v Edigarov [2001] NSWCCA 436
R v EGC [2005] NSWCCA 392
R v Gallagher [2007] NSWCCA 296
R v Hamid [2006] NSWCCA 302
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Johnson [2015] NSWSC 31
R v Keen [2004] NSWCCA 86
R v Loveridge [2014] NSWCCA 120
R v LWP [2003] NSWCCA 215
R v Mahon [2015] NSWSC 25
R v Street [2005] NSWCCA 139
R…

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 Sabongi v R

Details

AGLC: Sabongi v R [2015] NSWCCA 25
Case: [2015] NSWCCA 25
Decision Date: 05 March 2015

CaseChat Overview and Summary

The appeal was brought by the respondent against a sentence imposed on the applicant for a series of domestic violence offences. The applicant was found guilty of a series of domestic violence offences committed against his partner over a period of time. The court was required to determine whether the sentence imposed by the primary judge was manifestly excessive or inadequate, and whether there were any errors in the application of sentencing principles. The court was also required to consider the appropriate discount for the late plea of guilty, the accumulation of sentences, and the special circumstances of the case.

The court held that the sentence imposed by the primary judge was not manifestly excessive or inadequate, and that there were no errors in the application of sentencing principles. The court found that the primary judge had correctly considered the relevant factors in determining the appropriate sentence, including the seriousness of the offending, the need for deterrence, and the need to protect the community. The court also held that the primary judge had correctly applied the principles relating to the discount for a late plea of guilty, and that the discount was appropriate in the circumstances of the case. The court further held that the primary judge had correctly considered the issue of accumulation of sentences, and had appropriately taken into account the need to avoid excessive punishment. The court found that the primary judge had correctly identified special circumstances in relation to the applicant's history of alcohol fuelled violence, and had appropriately taken these circumstances into account in determining the appropriate sentence.

The court concluded that the appeal should be dismissed, and that the sentence imposed by the primary judge was appropriate in all the circumstances of the case. The court held that the sentence was not manifestly excessive or inadequate, and that there were no errors in the application of sentencing principles. The court further held that the primary judge had appropriately considered the issue of accumulation of sentences, and had correctly applied the principles relating to the discount for a late plea of guilty. The court found that the primary judge had appropriately identified special circumstances in relation to the applicant's history of alcohol fuelled violence, and had appropriately taken these circumstances into account in determining the appropriate sentence. The court held that there were no grounds for interfering with the sentence imposed by the primary judge, and that the appeal should be dismissed.

Orders