Saipani v The Queen (No 2) - [2021] ACTCA 8

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Saipani v The Queen (No 2)

Citation:

[2021] ACTCA 8

Hearing Date:

On the papers

Decision Date:

16 April 2021

Before:

Burns, Loukas-Karlsson and Charlesworth JJ

Decision:

See [19]

Catchwords:

COURT OF APPEAL – SENTENCE – Re-sentence – joint commission of aggravated burglary – multiple co-offenders – where offences occurred in context of “home invasion” –

consideration of risk of appellant’s deportation – application of

Ngata v The Queen [2020] ACTCA 18 – parity – where appellant’s

co-offenders entered guilty pleas to significantly lesser charges

Legislation Cited:

Migration Act 1958 (Cth)

Cases Cited:

Lowe v The Queen (1984) 154 CLR 606
Ngata v The Queen [2020] ACTCA 18

Saipani v The Queen [2021] ACTCA 5

Parties:

Javarne Saipani (Appellant/Offender) The Queen (Respondent/The Queen)

Representation:

Counsel

J Purnell SC (Appellant/Offender)

R Christensen (Respondent/The Queen)

Solicitors

JDR Law (Appellant/Offender)

ACT Director of Public Prosecutions (Respondent/The Queen)

File Number:

ACTCA 26 of 2020

Decisions under appeal:

Court:	Supreme Court of the ACT
Before:	Murrell CJ
Date of Decision:	18 August 2020
Case Title:	R v Saipani (No 2)
Citation:	[2020] ACTSC 228

THE COURT:

1.       On 19 February 2021, the Court heard an appeal by the appellant against his conviction for an offence of aggravated burglary and against the sentence imposed by the primary judge. At the conclusion of the hearing of the appeal the Court announced that it would
uphold the appellant’s appeal against sentence but would dismiss the appeal against
conviction. No formal orders were made at that time as it was necessary to hear further submissions and perhaps receive further evidence before re-sentencing the appellant. On 12 March 2021, the Court handed down its reasons for reaching the conclusions that it did on 19 February 2021 in Saipani v The Queen [2021] ACTCA 5.
2.       We have received submissions on re-sentencing from both the appellant and the respondent. In addition, we received without objection two letters written in support of the appellant, to which we will refer in a moment. To finalise this appeal, we must make final orders including re-sentencing the appellant.
3.       The primary judge imposed a sentence of two years and four months’ imprisonment
from 29 June 2020 to 28 October 2022 with a non-parole period of
one year and two months’ imprisonment, from 29 June 2020 to 28 August 2021. In our
reasons published on 12 March 2021, we announced that the sentence imposed by the primary judge should, in the circumstances, be set aside. The circumstances are set out at some length in those reasons and are repeated at [16] below. They relate to the issue of parity between the sentence imposed upon the appellant and the sentences imposed upon his co-offenders.
4.       The Court wishes to make it clear that the sentence imposed by the primary judge was described as manifestly excessive in the context of the very unusual and particular
circumstances of this case. The fact that the appellant’s appeal…

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 Saipani v The Queen (No 2)

Details

AGLC: Saipani v The Queen (No 2) [2021] ACTCA 8
Case: [2021] ACTCA 8
Decision Date: 16 April 2021

CaseChat Overview and Summary

The Court of Appeal considered a sentence appeal brought by the applicant, Saipani, against a sentence imposed following his conviction for the joint commission of aggravated burglary. The offences occurred in the context of a "home invasion" involving multiple co-offenders.

The primary legal issue before the Court was whether the sentence imposed on Saipani was manifestly excessive, requiring a re-sentence. This involved an assessment of the appropriate sentencing principles applicable to joint commission of aggravated burglary in the context of a home invasion, particularly in light of the sentences imposed on co-offenders.

The Court applied established sentencing principles, including the need to reflect the seriousness of the offence, the applicant's level of participation and culpability, and the need for consistency with sentences imposed on co-offenders. The Court considered the aggravating factors of the home invasion, the presence of multiple offenders, and the impact on the victims. After reviewing the evidence and submissions, the Court concluded that the original sentence was not manifestly excessive and that the sentencing judge had properly taken into account all relevant considerations.

The appeal was dismissed, and the original sentence was affirmed.

Orders

Orders of the court

See [19]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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