Regina v Paulo NIKAU [1999] NSWCCA 322

New South Wales Court of Criminal Appeal CITATION : Regina v Paulo NIKAU [1999] NSWCCA 322 FILE NUMBER(S) : CCA 60745/98 HEARING DATE(S) : 13 October 1999 JUDGMENT DATE : 13 October 1999

PARTIES : Regina Paulo Nikau JUDGMENT OF : Sully J at 1; Ireland J at 15; Hidden J at 16

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70043/96 LOWER COURT JUDICIAL OFFICER : Barr J

COUNSEL : S. R. Norrish QC - Crown R. D. Ellis - Applicant SOLICITORS : T. A. Murphy - Crown S. E. O'Connor - Applicant CATCHWORDS : ACTS CITED : Crimes Act DECISION : Leave to appeal against sentence granted; by majority, appeal against sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL

60745/98

SULLY J IRELAND J HIDDEN J

13 October 1999

REGINA v Paulo NIKAU

JUDGMENT

1 SULLY J: SULLY J: On 30 October 1998 the present applicant, MrPaulo Nikau, stood for sentence before his Honour Justice Barr of this Court. He so stood for sentence having pleaded guilty to a charge of manslaughter and to a cognate charge of malicious wounding. He had been indicted originally upon an indictment charging him with murder, and separately with malicious wounding; and the Crown accepted a plea of not guilty of murder but guilty of manslaughter in discharge of the count charging murder. 2 The statutory maximum penalty for the offence of manslaughter is penal servitude for twenty five years. The statutory maximum penalty for malicious wounding, a contravention of s 35(a) of the Crimes Act, is penal servitude for seven years. 3 The learned sentencing Judge imposed upon the applicant in connection with the offence of manslaughter a sentence of penal servitude for twelve years. That sentence was apportioned between a minimum term of eight years and an additional term of four years. In respect of the malicious wounding offence his Honour imposed a fixed term of penal servitude for four years, dating that fixed term in such a way as to make it concurrent with the sentence imposed in respect of the manslaughter offence. 4 The applicant contends that the sentence thus imposed upon him is manifestly excessive and such as ought to be reviewed by this Court. 5 The relevant facts are within a small compass and can be taken conveniently from the remarks on sentence of Barr J: "At about 9.30pm on Tuesday 28 November 1995 a number of young men, including one called Sautia and the brother of the prisoner, whom I shall call J N Norman, were in Lethbridge Park. Sautia and J N entered a shop to buy goods, and whilst they were there the staff asked three young men who were of Aboriginal descent to leave the premises. Sautia and J N took it upon themselves to escort the three men from the shop, and that was the cause of some resentment. A fight broke out. Sautia, J N, a man called Tarawa and others took part on one side of the fight. On the other side of the fight there were a number of young Aboriginal men, including the deceased and Mr Morgan. After the fight, two of the men who had taken part went to the prisoner's house and said something of what had happened. The prisoner and others responded by going to the house of a man called Stenschke in Emerton, and the prisoner there picked up a kitchen knife and put it down his trousers. One of the others told him to put it back, but he did not. Stenschke said that Tarawa had been attacked at the Lethbridge Park shops and that they were returning there. They did so. The group to which the prisoner belonged were of Pacific Islander extraction. Eventually the prisoner J N and others arrived at a park, some carrying metal bars. The prisoner still had the knife. There was a group of Aboriginal men in the park, including Mr Morgan and the deceased, and when they saw the prisoner's group approaching, members of the Aboriginal group armed themselves with fence palings and ran off into a laneway. There they were attacked by the prisoner's group. The prisoner ran towards Mr Morgan, holding the knife pointing towards him, and Mr Morgan turned to run. The prisoner stabbed him in the back, remarking as he did so that he was the one who had thrown a bottle. Sautia and another man laid into Mr Morgan with an iron peg. Apart from what the prisoner said, the only evidence about what happened to the deceased comes from a statement of Mr Morgan. He said that there were about four islanders around the deceased. He was being held by the arms and the prisoner was between them, punching him. Mr Morgan's statement does not mention a knife and does not appear to be describing an attack with a knife from the rear. After the fight was over, the prisoner and others returned to the house at Emerton and the prisoner realised that he did not have the knife. After an unsuccessful search for it he said, 'I never meant to get him that bad, but it went straight through'".