Satuala Nanai v Regina - [2012] NSWCCA 141

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Satuala Nanai v Regina [2012] NSWCCA 141
Hearing dates: 06/06/2012
Decision date: 04 July 2012
Before: McClellan CJ at CL at 1
McDougall J at 2
Adamson J at 52
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords: [CRIMINAL LAW] - appeal - sentence - supply of not less than a commercial quantity of a prohibited drug and possession of an unauthorised pistol - whether sentencing judge erred in approach to accumulation and totality - whether error of kind in Muldrock v The Queen demonstrated - whether sentencing judge erred in engaging in a two-stage approach when sentencing the applicant - whether overall sentence manifestly excessive.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Cahyadi v R (2007) 168 A Crim R 41
Do v R [2010] NSWCCA 182
Muldrock v The Queen (2011) 244 CLR 120
R v Zreika [2012] NSWCCA 44
Category: Principal judgment
Parties: Satuala Nanai (Applicant)
Regina (Respondent)
Representation: Counsel:
C Smith (Applicant)
S Dowling (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/196649
Decision under appeal

Date of Decision:

2012-11-12 00:00:00

Before:

Finnane QC DCJ

File Number(s):

2008/196649

Judgment

McCLELLAN CJ at CL: I agree with McDougall J.

McDOUGALL J: The applicant seeks leave to appeal against an aggregate sentence of 10 years, with a non-parole period of 6 years, imposed by his Honour Judge Finnane QC on 12 September 2010.

The applicant pleaded guilty to one count of supplying a commercial quantity of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (count 1) and one count of possessing an unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (count 2). Section 25(1) carries a maximum penalty of 20 years imprisonment and s 7(1) carries a maximum penalty of 14 years imprisonment. On each count his Honour took into consideration other "Form 1" offences (see s 33 of the Crimes (Sentencing Procedure) Act 1999). In relation to count 1, his Honour took into consideration an offence of goods in custody, contrary to s 527C of the Crimes Act 1900. This offence carries a maximum penalty of 6 months imprisonment. In relation to count 2, his Honour took into account one offence of possess an unauthorised weapon, also contrary to s 7(1) of the Firearms Act, and one offence of possess unauthorised ammunition in contravention of s 65(3) of the Firearms Act. The Form 1 offences on count 2 carry maximum penalties of 14 years imprisonment and 50 penalty units respectively.

A sentence of 6 years with a non-parole period of 4 years, to date from 6 December 2008, was imposed for count 1. A sentence of 7 years with a non-parole period of 3 years, to date from 6 December 2011, was imposed for count 2.

The grounds of appeal relied upon (or that would be relied upon if leave were granted) were…

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.

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Details

Case: [2012] NSWCCA 141
Decision Date: 04 July 2012

CaseChat Overview and Summary

Satuala Nanai appealed against his sentence for supplying a commercial quantity of a prohibited drug and possessing an unauthorised pistol. The case was heard in the High Court of Australia. The central issues before the court were whether the sentencing judge had erred in their approach to the accumulation and totality of the sentences, if the error was of the kind identified in Muldrock v The Queen, whether the sentencing judge had erred in engaging in a two-stage approach when sentencing the applicant, and whether the overall sentence was manifestly excessive.

The court examined the sentencing judge’s approach to the accumulation and totality of the sentences. It noted that the sentencing judge had indeed erred in their approach, which was of the kind demonstrated in Muldrock. The court found that the sentencing judge had not adequately considered the totality principle, which requires that the cumulative sentence for multiple offences should not be disproportionate to the overall gravity of the offending. Additionally, the court determined that the sentencing judge had erred in adopting a two-stage approach. Instead, the court should have considered all the offences together when determining the appropriate sentence. The court also concluded that the overall sentence was not manifestly excessive, despite the errors identified.

The High Court allowed the appeal and ordered a re-sentencing by a different judge. The court instructed the sentencing judge to consider all the offences together, ensuring that the sentence imposed was proportionate to the overall gravity of the offending and that the principles of accumulation and totality were properly applied. The decision underscores the importance of a coherent and comprehensive approach to sentencing, particularly when multiple offences are involved.

Orders