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Wiriyanjara v The Queen

Wiriyanjara v The Queen

Case [2016] NSWCCA 167 15 August 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wiriyanjara v R [2016] NSWCCA 167
Hearing dates: 8 August 2016
Decision date: 15 August 2016
Before: Payne JA at [1];
R A Hulme J at [2];
Adamson J at [62]
Decision:
Extension of time in which to apply for leave to appeal against sentence is refused

Catchwords: CRIMINAL LAW – application for extension of time to seek leave to appeal sentence – unrepresented applicant – dishonestly obtaining financial advantage by deception – s 178BA(1) of the Crimes Act – medical and cognitive issues appropriately considered in sentencing exercise – no principled basis shown for accepting fresh or new evidence of medical issues or experience of protective custody – sentence not manifestly excessive for sustained and serious offending – application refused due to lack of merit
Legislation Cited: Crimes Act 1900 (NSW) s 178BA
Crimes Act 1914 (Cth) s 16G
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
Cases Cited: Alrubae v R [2016] NSWCCA 142
FP v R [2012] NSWCCA 182; 224 A Crim R 82
Hello v R; El-Skaf v R; Bakkour v R; Hosainy v R [2010] NSWCCA 311
Jiang v R [2010] NSWCCA 277
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Khoury v R [2011] NSWCCA 118
R v Bothra [2012] NSWDC 158
R v Cappadona & Anor [2001] NSWCCA 194; 122 A Crim R 52
R v Cartwright (1989) 17 NSWLR 243
R v Cramp [2004] NSWCCA 264
R v Dennis (Court of Criminal Appeal (NSW), 14 December 1992, unrep)
R v Fidow [2004] NSWCCA 172
R v Hare [2007] NSWCCA 303
R v Hemsley [2004] NSWCCA 228
R v Kilpatrick [2005] NSWCCA 351; 156 A Crim R 478
R v Murphy [2009] NSWDC 58
R v Todd [1982] 2 NSWLR 517
R v Webb [2004] NSWCCA 330; 149 A Crim R 167
Category: Principal judgment
Parties: Wadari Wiriyanjara (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant in person
Mr H Baker (Crown)
Solicitors:
Solicitor for Public Prosecutions

File Number(s): 2010/334364
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

15 March 2013

Before:

Hock DCJ

File Number(s):

2010/334364

Judgment

PAYNE JA: I agree with R A Hulme J.
R A HULME J: Mr Wadari Wiriyanjara ("the applicant") was sentenced by her Honour Judge Hock in the District Court to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years in respect of 27 offences of dishonestly obtaining a financial advantage by deception.
The offences were contrary to s 178BA(1) of the Crimes Act 1900 (NSW) (since repealed) which prescribed a maximum penalty of imprisonment of 5 years.
The applicant pleaded not guilty to each of the offences but was found guilty by a jury in a two-week trial in August 2012. (There were verdicts of not guilty for 3 of the 30 counts in the indictment.) He was sentenced on 15 March 2013.
He filed a notice…

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 Wiriyanjara v The Queen

Details

AGLC: Wiriyanjara v The Queen [2016] NSWCCA 167
Case: [2016] NSWCCA 167
Decision Date: 15 August 2016

CaseChat Overview and Summary

The appellant, Wiriyanjara, appealed against the refusal of the primary judge to extend the time limit for seeking leave to appeal his sentence. The appellant had been convicted of obtaining a financial advantage by deception contrary to section 178BA(1) of the Crimes Act. He applied for an extension of time to seek leave to appeal the sentence imposed by the trial judge, who had found him to have engaged in sustained and serious offending.

The primary issue before the court was whether the application for an extension of time should be granted, given the appellant's unrepresented status, his medical and cognitive issues, and the nature of the offence. The court considered whether the sentence was manifestly excessive and whether there was a principled basis for accepting fresh evidence regarding the appellant's medical issues or his experience of protective custody.

The court held that the appellant had not demonstrated a principled basis for accepting fresh or new evidence of his medical issues or experience of protective custody. The court also found that the sentence was not manifestly excessive for the sustained and serious offending committed by the appellant. The court considered that the medical and cognitive issues had been appropriately considered in the sentencing exercise and did not warrant an extension of time. Consequently, the application for an extension of time was refused due to a lack of merit.

The court dismissed the application and upheld the primary judge's decision.

Orders