Yondjo v The Queen - [2019] NSWCCA 57

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Yondjo v R [2019] NSWCCA 57
Hearing dates: 22 October 2018
Decision date: 22 March 2019
Before: Hoeben CJ at CL [1]
Davies J at [2]
Button J at [3]
Decision:
Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – unrepresented accused – serious drug offence, and other offending – whether sentence manifestly excessive – whether error in assessment of objective seriousness – whether misapplication of principle with regard to criminal record of applicant – whether absence of pleas of guilty in the Local Court due to incompetent representation of applicant – proposed grounds devoid of merit – leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW), ss 51B(1), 193B(3)
Criminal Procedure Act 1986 (NSW) s 166
Drug Misuse and Trafficking Act 1985 (NSW)
Category: Principal judgment
Parties: Stanislas Kanengele Yondjo (aka Musa Pene Okele) (Appellant)
Regina (Respondent)
Representation:
Counsel:
Self-represented (Appellant)
B Baker (Respondent)
Solicitors:
Self-represented (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/176725, 2015/168345
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

09 June 2017

Before:

Judge Whitford SC

File Number(s):

2015/176725, 2015/168345

Judgment

HOEBEN CJ AT CL: I agree with the reasons of Button J and the order which he proposes. Far from being excessive, I consider that the aggregate sentence was lenient in the circumstances.
DAVIES J: I agree with Button J.
BUTTON J:

Introduction

This application for leave to appeal against sentence is, in my respectful opinion, devoid of merit, and should be the subject of a refusal of leave. For that reason, my recitation of the relevant facts and circumstances, my discussion of the submissions of the applicant, and my analysis of those submissions, will be shorter than they would have been if I had felt that leave should be granted. To do otherwise would be to render the refusal of leave fruitless.

Procedural history

On 10 June 2016, Mr Stanislas Kanengele Yondjo, also known as Musa Pene Okele (the applicant) pleaded guilty to four offences in the District Court. The offences were as follows: supply of a prohibited drug (namely, 5.01 grams of methylamphetamine) (maximum penalty of imprisonment for 15 years, pursuant to the Drug Misuse and Trafficking Act 1985 (NSW); supply of a prohibited drug (namely, 95.7 grams of methylamphetamine) (maximum penalty as above); driving a vehicle whilst he ought to have known police were in pursuit, failing to stop the vehicle as required, and then driving the vehicle recklessly and in a manner dangerous to others (maximum penalty of imprisonment for 3 years for a first offence, pursuant to s 51B(1) of the Crimes Act 1900 (NSW)); and recklessly dealing with the proceeds of crime (maximum penalty of imprisonment for 10 years, pursuant to s 193B(3) of the Crimes Act).
There were a further six offences on two certificates pursuant to s 166 of the Criminal…

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 Yondjo v The Queen

Details

AGLC: Yondjo v The Queen [2019] NSWCCA 57
Case: [2019] NSWCCA 57
Decision Date: 22 March 2019

CaseChat Overview and Summary

In the case of Yondjo v The Queen, the applicant sought leave to appeal against the sentence imposed following his conviction for serious drug offences and other related crimes. The application was made unrepresented, highlighting the applicant's dissatisfaction with the outcome of his sentencing in the District Court of New South Wales. The core dispute centred around whether the sentence was manifestly excessive and if there were errors in the assessment of the objective seriousness of the offending, as well as a misapplication of principles regarding the applicant’s criminal history.

The legal issues before the court involved determining whether the sentencing judge had erred in law or fact, whether the sentence imposed was manifestly excessive, and if the applicant's lack of pleas of guilty in the Local Court was attributable to incompetent legal representation. The court had to consider whether the proposed grounds for appeal were devoid of merit, which would affect the decision to grant leave to appeal.

The court found that the applicant's grounds for appeal were largely without merit. It concluded that the sentencing judge did not make a material error in law or fact that would warrant an appeal. The court held that the sentence was not manifestly excessive and that the principles applied regarding the applicant's criminal history were correctly considered. Additionally, the court found no evidence to support the claim that the applicant's failure to enter pleas of guilty was due to incompetent legal representation. Consequently, the court refused the application for leave to appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The sentencing Judge made material error of law and facts by both omitting to consider some salient features of the evidence and allowing extraneous material to influence the final order. The Sentencing Judge made not only an error of law but also erred in principle in treating criminal record as an aggravating factor, and in determining the degree of criminality involved as well as the range of sentence to impose. Miscarriage of justice occurred due to counsels’ incompetence and carelessness during the Lower Court’s proceedings, arraignment and sentence hearings in the District Court. An error was made as to the objective seriousness of the offending resulting in failure to give a proper discount for the utilitarian aspect of the guilty plea. Both the objective and subjective features in the case sufficiently show the bases for a conclusion that the sentence is manifestly excessive and that other sentence is warranted in law and should have been passed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Yondjo v R [2019] NSWCCA 57
Hearing dates:	22 October 2018
Decision date:	22 March 2019
Before:	Hoeben CJ at CL [1] Davies J at [2] Button J at [3]
Decision:	Leave to appeal against sentence refused.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – unrepresented accused – serious drug offence, and other offending – whether sentence manifestly excessive – whether error in assessment of objective seriousness – whether misapplication of principle with regard to criminal record of applicant – whether absence of pleas of guilty in the Local Court due to incompetent representation of applicant – proposed grounds devoid of merit – leave to appeal refused
Legislation Cited:	Crimes Act 1900 (NSW), ss 51B(1), 193B(3) Criminal Procedure Act 1986 (NSW) s 166 Drug Misuse and Trafficking Act 1985 (NSW)
Category:	Principal judgment
Parties:	Stanislas Kanengele Yondjo (aka Musa Pene Okele) (Appellant) Regina (Respondent)
Representation:	Counsel: Self-represented (Appellant) B Baker (Respondent) Solicitors: Self-represented (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/176725, 2015/168345
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 09 June 2017 Before: Judge Whitford SC File Number(s): 2015/176725, 2015/168345