R v GRAFF [2001] NSWCCA 3

New South Wales Court of Criminal Appeal

CITATION : R v GRAFF [2001] NSWCCA 3 FILE NUMBER(S) : CCA 60605/98 HEARING DATE(S) : 30 January 2000 JUDGMENT DATE : 30 January 2001

PARTIES : Regina Julius Graff JUDGMENT OF : Giles JA at 1; Hulme J at 2; Howie J at 34

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70085/96 LOWER COURT JUDICIAL Barr J OFFICER :

COUNSEL : Crown: EA Wilkins Appellant: P Segal SOLICITORS : Crown: SE O'Connor Appellant: NA

DECISION : Leave to appeal granted; Appeal dismissed

- 11 -THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CCA 60605/99

GILES JA HULME J HOWIE J

Tuesday, 30 January 2001 REGINA v JULIUS GRAFF JUDGMENT

1 GILES JA: We are in a position to deal with the matter now. I will ask Hulme J to deliver the first reasons. 2 HULME J: On 15 May 1996 this applicant for leave to appeal in company with Davina Leaituaalesi and a young person who has been referred to as RT, attacked the driver of a taxi they had hired. They beat him into unconsciousness and continued attacking him. They stole the contents of his takings bag and his wallet, pushed him onto the road and drove off in his taxi. They were charged with, and pleaded guilty to, robbery in company. Justice Barr, who sentenced the three concluded that they were equally implicated in the attack. 3 On 25 May 1996, the same three persons, together with a fourth person hailed another taxi at about 4.00am, driven by Mr Chmeis. The fourth person was dropped off. At some later stage when the taxi was stopped, the three attacked Mr Chmeis, also punching him, and when he was helpless on the ground, kicked him in the head and body, stripped him of his clothing and whipped him with his belt. They then drove off in Mr Chmeis' taxi. Mr Chmeis died as a result of the kicking to his head. It is to be inferred that the motive for the attack was robbery. The three persons mentioned were charged with, and pleaded guilty to, murder. Justice Barr said that they were equally responsible for Mr Chmeis' death. 4 At the applicant' request, two further offences were taken into account in connection with the sentence imposed in respect of the murder charge. The first occurred on 23 January 1994 and was an assault occasioning actual bodily harm. The applicant was one of a group of five persons who attacked their victim on Bankstown railway station. The victim was punched and kicked a number of times and lost consciousness. He suffered fractures to his nose and face. 5 The second offence which occurred on 8 September 1995, was the malicious infliction of grievous bodily harm. The applicant came across two men having an argument. Believing that one had been or was about to be assaulted, the applicant punched the other in the face. The victim fell heavily, striking his head on the footpath. His injuries were at the least permanent and severely handicapping brain damage. Justice Barr recorded that the 2 offences referred to in this paragraph were so serious that they must materially affect the sentence. 6 The only other objective circumstances to which it is necessary to refer are that the applicant was on bail at the time of the commission of the second offence taken into account and of the two offences with which he was charged and, secondly, the conclusion reached by Barr J that the applicant was the leader of the 3 offenders. 7 The maximum periods of imprisonment fixed by Parliament for the offences of which the applicant was guilty are, respectively, robbery in company, 20 years; murder, life imprisonment; assault occasioning actual bodily harm, 5 years and maliciously inflict grievous bodily harm, 7 years. 8 The sentences imposed on the applicant were, for murder, and taking into account the 1994 and 1995 offences, a minimum term of 18 years and an additional term of 5 years and for robbery, a fixed concurrent term of 8 years. Those imposed on Davina Leaituaalesi were for murder, a minimum term of 10 years and an additional term of 6 years and, for robbery, a fixed concurrent term of 6 years. Those imposed on RT for these offences were a minimum term of 11 years and an additional term of 6 years and a concurrent fixed term of 6 years. 9 The grounds of appeal were: (1) The applicant has a justifiable sense of grievance by reason of lack of parity with the sentences of co-offenders.