Sunia James Kafovalu v Regina - [2007] NSWCCA 141

New South Wales
Court of Criminal Appeal

CITATION: Sunia James Kafovalu v Regina [2007] NSWCCA 141

HEARING DATE(S): 26 April 2007

JUDGMENT DATE:
24 May 2007

JUDGMENT OF: James J at 1; Rothman J at 2; Harrison J at 3

DECISION: Leave to appeal against sentence granted. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against severity of sentence, robbery in company, affray, assault occasioning actual bodily harm, assaulting police officer in execution of duty thereby occasioning actual bodily harm, resiting police officers in execution of duty, objective seriousness of assault occasioning actual bodily harm, whether error to take into account fact that offender on parole at time of offence, no error shown, no miscarriage of sentencing discretion, sentences not manifestly excessive

LEGISLATION CITED: Crimes Act 1900 - ss 58, 59(1), 60(2), 93C(1), 97(1)
Criminal Appeal Act 1912 - s6(3)

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Henry (1999) 46 NSWLR 346
R v Keen [2004] NSWCCA 86
R v McNaughton [2006] NSWCCA 242
R v Moffitt (1990) 20 NSWLR 114
R v Price [2004] NSWCCA 186
R v Readman (1990) 47 A Crim R 181
R v Richards [1981] 2 NSWLR 464
R v Simpson (2001) 53 NSWLR 704
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Tran [1999] NSWCCA 109
R v Way (2004) 60 NSWLR 168
R v Wilson [2005] NSWCCA 219
Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) (2002) 137 A Crim R 196
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: Sunia James Kafovalu (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/2652

COUNSEL: C Smith (Applicant)
D Woodburne (Crown)

SOLICITORS: S O'Connor, Solicitor for the Legal Aid Commission of New South Wales (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0076

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 2 June 2006 (Date of sentence)

- 1 -

2006/2652

JAMES J
ROTHMAN J
HARRISON J

24 May 2007

SUNIA JAMES KAFOVALU v REGINA

Judgment

1 JAMES J: I agree with Harrison J.

2 ROTHMAN J: I agree with Harrison J.

3 HARRISON J: On 22 June 2005 the applicant entered a plea of guilty in the District Court of New South Wales to a charge of robbery in company on 26 September 2003 at Newtown. This is an offence under s 97(1) of the Crimes Act 1900. The offence of robbery in company carries a maximum penalty of 20 years imprisonment.

4 On 25 November 2005 the applicant entered pleas of guilty in the District Court of New South Wales to charges of affray, assault occasioning actual bodily harm, assaulting a police officer in the execution of her duty and thereby occasioning actual bodily harm, and resisting police officers in the execution of their duty. The maximum penalties in the Crimes Act 1900 for these offences are, respectively, imprisonment for 5…

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: [2007] NSWCCA 141
Decision Date: 24 May 2007

CaseChat Overview and Summary

The appellant, Sunia James Kafovalu, was convicted for his involvement in a series of criminal activities, including robbery in company, affray, assault occasioning actual bodily harm, assaulting a police officer in the execution of their duty, and resisting police officers in the execution of their duty. The case was heard in the High Court of Australia, which reviewed the severity of the sentence imposed on the appellant. The appellant's primary contention was that the trial judge erred in considering certain factors in determining the objective seriousness of the assault occasioning actual bodily harm, and that the sentence was manifestly excessive.

The legal issues before the court were whether the trial judge made an error in taking into account the fact that the appellant was on parole at the time of the offence, and whether the sentence imposed was a miscarriage of the court's sentencing discretion. The court considered whether the trial judge had correctly applied the principles of sentencing and whether the sentence imposed was manifestly excessive, having regard to the objective seriousness of the offences committed.

The High Court found that there was no error in the trial judge's consideration of the appellant's parole status at the time of the offence, as it was a relevant factor in assessing the objective seriousness of the assault occasioning actual bodily harm. The court also determined that there was no miscarriage of the sentencing discretion, as the trial judge had properly considered all relevant factors and had not imposed a manifestly excessive sentence. The court held that the sentence imposed was appropriate and proportionate to the severity of the crimes committed.

The High Court dismissed the appeal and affirmed the sentence imposed by the trial court. The appellant's conviction and sentence were upheld, with the court finding that the trial judge had correctly exercised their sentencing discretion and that the sentence was not manifestly excessive.

Orders