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Somba v Regina

Somba v Regina

Case [2012] NSWCCA 214 23 November 2012

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Court of Criminal Appeal

New South Wales

Case Title: Somba v Regina

Medium Neutral Citation: [2012] NSWCCA 214

Hearing Date(s): 26 July 2012

Decision Date: 23 November 2012

Jurisdiction: Criminal

Before: Beazley JA at [1]
Hall J at [2]
SG Campbell J at [87]

Decision: 1)Leave to appeal be granted.
2)The appeal be dismissed.

Catchwords: CRIMINAL LAW - appeal - appeal against sentence - parity of sentences in relation to sentences imposed on the applicant and on each of the two co-offenders - whether severity of sentence imposed on applicant gave rise to justifiable sense of grievance - whether sentencing judge erred in application of Pearce v The Queen [1998] HCA 57 - whether total sentence imposed in respect of one count excessive - whether total effective sentence manifestly excessive - error not established.

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedures) Act 1999

Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Johnson v R [2010] NSWCCA 124
Lowe v The Queen [1984] HCA 46; 154 CLR 606
McIvor v Regina [2010] NSWCCA 7
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Qing An v Regina [2007] NSWCCA 53
R v Bavadra [2000] NSWCCA; 115 A Crim R 152
R v Hoschke [2001] NSWCCA 316
R v JW [2010] NSWCCA 49
R v Swan [2006] NSWCCA 47

Texts Cited:

Category: Principal judgment

Parties: Hans Christian Somba (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Ms J Manuell SC (Applicant)
Deputy Director Mr J Pickering (Respondent)

- Solicitors: Solicitors:
Voros Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File number(s): 2008/84619

Decision Under Appeal

- Court / Tribunal:

- Before: Hock DCJ

- Date of Decision: 04 March 2011

- Citation:

- Court File Number(s)

Publication Restriction:

JUDGMENT

BEAZLEY JA: I agree with Hall J.
HALL J: The applicant, Hans Christian Somba, seeks leave to appeal from three sentences imposed on him by the District Court, her Honour Hock DCJ on 4 March 2011. He was charged with three offences under s 97(2) of the Crimes Act 1900 ("the Act") as follows:
Count 1: Aggravated armed robbery in company, namely being armed with a dangerous weapon on 16 August 2008; s 97(2) of the Act.
Count 2:Aggravated assault with intent to rob, namely being armed with a dangerous weapon on 27 August 2008; s 97(2) of the Act.
Count 3: Aggravated assault with intent to rob, namely being armed with a dangerous weapon on 27 August 2008; s 97(2) of the Act.
The above offences were committed on the dates and at the branches of the Bank of Queensland as follows:
(i) Kensington branch on 16 August 2008 (Count 1).
(ii)The Rocks branch on 22 August 2008 (Count 2).
(iii)The Newtown branch on 27 August 2008 (Count 3).
In respect of the counts:
(i)Count 1 was particularised as robbery being armed with a dangerous weapon and…

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 Somba v Regina

Details

AGLC: Somba v Regina [2012] NSWCCA 214
Case: [2012] NSWCCA 214
Decision Date: 23 November 2012

CaseChat Overview and Summary

In the case of Somba v Regina, the applicant appealed against his sentence, challenging the disparity between the sentences imposed on him and his two co-offenders. The High Court of Australia considered the appeal, focusing on the severity of the sentence and the appropriate application of the principles outlined in Pearce v The Queen. The central issue was whether the sentencing judge erred in applying the Pearce principles, particularly in relation to the disparity of sentences and the overall severity of the sentence imposed on the applicant.

The court examined whether the severity of the sentence imposed on the applicant created a justifiable sense of grievance and whether the sentencing judge had correctly applied the principles established in Pearce v The Queen. The court also assessed whether the total sentence imposed in respect of one count was excessive and if the total effective sentence was manifestly excessive. After thorough consideration, the court found that no error in the application of Pearce had been established. The court concluded that the sentencing judge had appropriately balanced the considerations and that the sentences were proportionate and just.

The High Court held that the appeal against sentence should be dismissed. The court found that the sentencing judge had not erred in applying the principles of Pearce, and there was no basis for concluding that the sentences were manifestly excessive. The disparity in sentences between the applicant and his co-offenders was justified by the different roles each played in the crime. The court confirmed that the sentence imposed on the applicant was appropriate and did not give rise to a justifiable sense of grievance.

Orders