Usaia v The King - [2023] NSWCCA 57

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Usaia v R [2023] NSWCCA 57
Hearing dates: 17 February 2023
Decision date: 24 March 2023
Before: Beech-Jones CJ at CL at [1];
Button J at [2];
McNaughton J at [45]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal against sentence allowed, and aggregate sentence imposed at first instance quashed.
(3) In substitution, an aggregate head sentence of imprisonment for 7 years is imposed, to commence on 3 November 2019 and expire on 2 November 2026.
(4) An aggregate non-parole period of 3 years 6 months is imposed, to expire on 2 May 2023.
(5) The first date upon which the applicant is eligible for possible release to parole is 2 May 2023.

Catchwords:
CRIME — appeals — appeal against sentence —affray at King’s Cross nightclub – assault of police officers in execution of duty – actual and grievous bodily harm inflicted – applicant convicted of multiple counts – standard non-parole periods taken into account with regard to certificate offences dealt with notionally in Local Court – material error established – appeal allowed – resentenced

Legislation Cited:
Criminal Procedure Act 1986 (NSW) ss 166, 168
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 54D

Cases Cited:
BP v R [2010] NSWCCA 159

Category: Principal judgment
Parties: Tuni Usaia (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Paingakulam (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/328817
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 January 2022

Before:

Shead SC DCJ

File Number(s):

2019/00328817

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Tuni Usaia (the applicant) pleaded guilty to numerous violent offences committed against police officers outside the Flamingo Lounge, a nightclub in King’s Cross, on 19 October 2019. On 21 January 2021, Shead SC DCJ sentenced the applicant. While two offences were before her Honour substantively, others were listed for consideration on a Form 1 (see s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW)), or before her Honour on a certificate (pursuant to s 166 of the Criminal Procedure Act 1986 (NSW)). An aggregate term of 8 years imprisonment was ultimately imposed, with a non-parole period of 4 years.

Her Honour’s reasoning, adopting a legal slip in the Crown’s written submissions on sentence, referred to the certificate offences possessing standard non-parole periods. However, as these offences were being dealt with notionally in the Local Court, no standard non-parole periods should have been applied.

The Court held: The mistaken reflection upon the standard non-parole periods was a material error requiring consideration of resentence.

It was found that, when comparing the head aggregate sentence with the indicative sentences imposed for the substantive offences, one could infer that the certificate offences were significantly reflected in the aggregate term imposed. Further, the standard non-parole periods were explicitly mentioned in her Honour’s judgment, albeit whilst explaining why…

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 Usaia v The King

Details

AGLC: Usaia v The King [2023] NSWCCA 57
Case: [2023] NSWCCA 57
Decision Date: 24 March 2023

CaseChat Overview and Summary

The appeal in Usaia v The King involved the applicant, Usaia, who was convicted of multiple offences including affray at a nightclub in King’s Cross, and assaulting police officers in the execution of their duty, resulting in actual and grievous bodily harm. Usaia was sentenced in the District Court of New South Wales, which took into account the standard non-parole periods for the certificate offences that were notionally dealt with in the Local Court. Usaia appealed against the sentence, arguing that there was a material error in the sentencing process. The appeal was heard by the New South Wales Court of Criminal Appeal.

The legal issues before the court were whether there was a material error in the sentencing process and, if so, what the appropriate remedy would be. The court needed to determine whether the error was material and whether it affected the fairness of the sentence. The court also considered the appropriate sentence that should have been imposed in the circumstances.

The court found that there was indeed a material error in the sentencing process. The error involved the court not properly considering the effect of the Local Court proceedings on the sentence. The court found that the error was material because it affected the fairness of the sentence. The court then proceeded to resentence Usaia, taking into account all relevant factors, including the nature and circumstances of the offences and the need for deterrence and denunciation. The court resentenced Usaia to a term of imprisonment with a non-parole period that reflected the seriousness of the offences and the need for general deterrence.

The court allowed the appeal and set aside the original sentence. The court then resentenced Usaia to a term of imprisonment with a non-parole period of [insert number of years] years. The court also ordered that Usaia be given credit for time served in custody.

Orders