Vaeila, Jonathon v The Queen - [2010] NSWCCA 113

New South Wales
Court of Criminal Appeal

CITATION: VAEILA, Jonathon v R [2010] NSWCCA 113

HEARING DATE(S): 7 May 2010

JUDGMENT DATE:
27 May 2010

JUDGMENT OF: Hodgson JA at 1; Johnson J at 2; Rothman J at 3

DECISION:
(i) Leave to appeal granted;
(ii) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – sentence appeal – De Simoni principle and manifest excess – no issue of principle – no basis for submission – no identifiable or manifest error – appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Kelly [2005] NSWCCA 280; (2005) 155 A Crim R 499
R v Ranse (Court of Criminal Appeal, 8 August 1994, unreported)

PARTIES: Jonathon Vaeila (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/13079

COUNSEL: W Hunt (Applicant)
S Dowling (Respondent)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/13079

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

LOWER COURT DATE OF DECISION: 17 April 2009

2008/13079

HODGSON JA
JOHNSON J
ROTHMAN J
27 MAY 2010

VAEILA, Jonathon v R

Judgment

1 HODGSON JA: I agree with Rothman J.

2 JOHNSON J: I agree with Rothman J.

3 ROTHMAN J: Jonathon Vaeila seeks leave to appeal, and if leave be granted appeals, the sentence imposed by his Honour Judge Hughes on 17 April 2009 for the offence of demand property by force, in company, with intent to steal, which is a contravention of s 99(2) of the Crimes Act 1900.

4 The offence was committed on 5 January 2008 and the maximum penalty under the Crimes Act is 14 years’ imprisonment. His Honour Judge Hughes sentenced the applicant to a head sentence of imprisonment for 4 years and 3 months, commencing on 17 April 2009 and expiring on 16 July 2013. Of that, there is a non-parole period of 2 years, 1 month and 15 days, commencing on 17 April 2009 and expiring on 31 May 2011.

5 Mr Vaeila raises two grounds of appeal:

(i) that the sentence is manifestly excessive;

R v De Simoni [1981] HCA 31

(1981) 147 CLR 383

Facts

6 The applicant pleaded guilty before the District Court and a document of agreed facts was tendered as part of Exhibit A in the sentencing proceedings. Those agreed facts establish the following situation.

7 Mr Vaeila, with two other males, caught a train from Mt Druitt to St Marys at or shortly after 1.30am on Saturday 5 January 2008. At about 2.00am on that date, the victim arrived at St Marys Railway Station on his pushbike. He travelled to the paved area outside the station and alongside Station Street. After he travelled to that area, he saw one…

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 Vaeila, Jonathon v The Queen

Details

AGLC: Vaeila, Jonathon v The Queen [2010] NSWCCA 113
Case: [2010] NSWCCA 113
Decision Date: 27 May 2010

CaseChat Overview and Summary

In this case, Jonathon Vaeila appealed against his sentence following a conviction for a violent crime. The decision was handed down in the High Court of Australia. The primary issue for determination was whether the original sentencing was so excessive that it fell outside the range of reasonable responses, warranting an appeal on the grounds of manifest excess.

The court considered whether there was a fundamental error in the sentencing that went against established principles. The appeal hinged on the 'De Simoni' principle, which addresses the concept of manifest excess. The court examined whether the sentence imposed was outside the range of what a reasonable sentencing judge could have imposed, and if there was an identifiable or manifest error. The court found that no such error was present, and there was no basis for the argument that the sentence was manifestly excessive. The appeal was ultimately dismissed because the sentence fell within the range of reasonable responses and did not present a case of principle or manifest error.

The High Court held that the original sentence was not so disproportionate as to warrant an appeal. The appeal was dismissed, and the original sentence was upheld.

Orders