Bathurst CJ at [1]; R A Hulme J at [3]; Beech-Jones J at [42]
Decision:
1. Leave to appeal against sentence granted. 2. Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeal against sentence - wounding with intent to do grievous bodily harm contrary to s 33(1) of the Crimes Act 1900 – whether sentence manifestly excessive – weight given to the applicant’s background as victim of domestic violence – consideration of imprisonment leaving the applicant’s daughter with no parent – matters of weight the province of the sentencing judge – where the sentencing judge referenced all the pertinent features raised by the applicant – sentence within bounds of sentencing judge’s discretion
Faafaletimu Jane Vaiusu (Applicant) Regina (Respondent)
Representation:
Counsel: Mr A Barrie (Applicant) Mr S Hughes (Crown)
Solicitors: George Sten & Co Solicitor for Public Prosecutions
File Number(s):
2015/306397
Decision under appeal
Court or tribunal:
District Court
Date of Decision:
15 August 2016
Before:
Letherbarrow SC DCJ
File Number(s):
2015/306397
Judgment
BATHURST CJ: I agree with R A Hulme J. I would only add this; first, the Court could only intervene if there was error by the sentencing judge, or the sentence was manifestly excessive. For the reasons given by R A Hulme J, there does not appear to be error in the approach taken by the sentencing judge, nor in my opinion could the sentence be said to be manifestly excessive in the sense of being unreasonable or plainly unjust.
The offence is a serious one, and even taking into account the fact it was below the middle range of objective seriousness for offences of this nature, and the extremely strong subjective case mounted by the applicant, the sentence could not be said to fall within the category of unreasonable or plainly unjust. In those circumstances, regardless of the sympathy one could have for the applicant, there is no basis on which this Court could intervene.
R A HULME J: Faafaletimu Jane Vaiusu (“the applicant”) seeks leave to appeal in respect of a sentence imposed upon her in the Parramatta District Court on 15 August 2016 by his Honour Judge…
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
AGLC
Vaiusu v R [2017] NSWCCA 71
Case
[2017] NSWCCA 71
Decision Date
CaseChat Overview and Summary
The applicant, Vaiusu, appealed against his sentence for wounding with intent to do grievous bodily harm, which was imposed following a guilty plea to a charge under section 33(1) of the Crimes Act 1900. The dispute centred around whether the sentence imposed by the court was manifestly excessive. Vaiusu's background as a victim of domestic violence and the impact of his imprisonment on his daughter were significant considerations in the sentencing process. The applicant argued that these factors should have resulted in a more lenient sentence.
The primary legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive, given the considerations raised by the applicant. The court needed to determine whether the sentencing judge had appropriately balanced the relevant factors, including Vaiusu's background and the impact on his daughter, in arriving at the sentence. The court had to assess whether the sentence was within the bounds of the sentencing judge's discretion.
The court held that the sentencing judge had considered all pertinent factors raised by the applicant, including Vaiusu's background and the impact of his imprisonment on his daughter. The court noted that matters of this nature were within the province of the sentencing judge. The sentence imposed was found to be within the bounds of the sentencing judge's discretion. Consequently, the appeal against sentence was dismissed.