Tapueluelu v The Queen - [2006] NSWCCA 113

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Tapueluelu v R [2006] NSWCCA 113

FILE NUMBER(S):
2005/2220

HEARING DATE(S): 3 April 2006

DECISION DATE: 03/04/2006
EX TEMPORE DATE: 03/04/2006

PARTIES:
Moeakiola Tapueluelu - Applicant
Crown - Respondent

JUDGMENT OF: Simpson J Grove J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3271

LOWER COURT JUDICIAL OFFICER: Marien DCJ

COUNSEL:
TS Corish - Applicant
P Miller - Respondent

SOLICITORS:
S O'Connor - Applicant
S Kavanagh - Respondent

CATCHWORDS:
application for leave to appeal against severity of sentence
robbery in company
robbery armed with offensive weapon
pleas of guilty
imprisonment for eight years, non-parole period of six years
correct age and date of birth of applicant
prospects of rehabilitation
prior criminal record
previous offences dealt with in the Children's Court
recording of conviction in the Children's Court
whether trial judge erred in taking into account matters dealt with in Children's Court
evidence of other offences admissible if crime-free period of two years has not existed
offence of robbery in company aggravated by co-offender's possession of offensive weapon
joint criminal liability
sentencing judge intended to vary statutory ratio between head sentence and non-parole period
not put into effect in aggregate sentence
whether sentences manifestly excessive
accumulation of sentences

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987, s14, s15, s3
Crimes Act 1900, s97
Crimes (Sentencing Procedure) Act 199, s44(2)

DECISION:
(i) application for leave to appeal against sentence granted
(ii) sentence imposed in respect of the offence of robbery being armed with an offensive weapon quashed, and in lieu thereof the applicant sentenced to imprisonment for five years to commence on 17 February 2007 and to expire on 16 February 2012, with a non-parole period of two years and three months, to commence on 17 February 2007 and expire on 16 May 2009. The first date on which the applicant would be eligible for release on parole is 16 May 2009.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2220
GROVE J
SIMPSON J
HOWIE J
Monday 3 April 2006

Moeakiola TAPUELUELU v REGINA

Judgment

SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 7 March 2005 following his pleas of guilty to one count of robbery in company and one of robbery being armed with an offensive weapon. Each offence is an offence against s97 of the Crimes Act 1900, and carries a maximum penalty of imprisonment for 20 years. On the first count (robbery in company) Marien DCJ sentenced the applicant to imprisonment for a fixed term of four years, commencing on 17 February 2004 and expiring on 16 February 2008; on the second count (armed robbery) he sentenced the applicant to a term of imprisonment of five years, commencing on 17 February 2007 (and thus accumulated on the earlier-imposed sentence by three years) with a non-parole period of three years, which will expire on 16 February 2010. The total sentence thereby imposed was of imprisonment for…

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 Tapueluelu v The Queen

Details

AGLC: Tapueluelu v The Queen [2006] NSWCCA 113
Case: [2006] NSWCCA 113
Decision Date: 03/04/2006

CaseChat Overview and Summary

The applicant, Tapueluelu, appealed against the severity of his sentence for robbery in company, armed with an offensive weapon. The case was heard by the High Court of Australia. The applicant and his co-offender had committed the robbery, with the co-offender possessing the offensive weapon. Both had pleaded guilty and were sentenced to eight years imprisonment, with a non-parole period of six years. The applicant sought leave to appeal, arguing the sentence was excessive and that the trial judge had improperly considered matters from his prior criminal record, which had been dealt with in the Children's Court. He also argued that the robbery should not have been considered aggravated by the possession of an offensive weapon, as his co-offender was the one who had the weapon.

The central legal issues were whether the trial judge had erred in considering the applicant's prior criminal record, if the evidence of other offences was admissible, whether the robbery was correctly classified as aggravated, and if the sentences were manifestly excessive. The court considered whether the sentencing judge intended a variation from the statutory ratio between the head sentence and the non-parole period, and if the cumulative sentences were justified. The applicant's prospects of rehabilitation and his correct age and date of birth were also factors in the appeal.

The court found that the trial judge did not err in considering the applicant's prior criminal record, as it was relevant to the sentencing process. The evidence of other offences was admissible because the applicant had not maintained a crime-free period of two years. The court held that the robbery was correctly classified as aggravated due to the possession of an offensive weapon by the co-offender, and that joint criminal liability applied. The sentences were not found to be manifestly excessive, taking into account the cumulative sentences and the applicant's criminal history. The appeal was dismissed, and the original sentence was upheld.

Orders