R v Afele [2005] NSWCCA 315

New South Wales Court of Criminal Appeal

CITATION: R v Afele [2005] NSWCCA 315

HEARING DATE(S): 2 September 2005

JUDGMENT DATE: 7 September 2005

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Howie J at 51

DECISION: (i) leave granted to appeal; (ii) the sentence imposed in respect of Count 1 set aside; (ii) in lieu thereof, applicant re-sentenced to a fixed term of imprisonment of 18 months, to commence on 28 July 2004 and expire on 27 January 2006; (iv) appeal otherwise dismissed.

CATCHWORDS: appeal against severity of sentence - offence of assault occasioning actual bodily harm whilst in company - two offences of robbery whilst in company - pleas of guilty - whether sentences imposed were manifestly excessive - parity with sentences imposed upon co-offenders - subjective circumstances - remorse - youthful offender - prior good character - difference in sentencing accounted for by difference between charges - totality of offending

Children (Criminal Proceedings) Act 1987 LEGISLATION CITED: Crimes Act 1900, s 59(2), s97(1) Crimes (Sentencing Procedure) Act 1999 s21A, s44

Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Diamond NSWCCA, unreported, 18 February 1993 R v Hallacoglu (1992) 29 NSWLR 67 CASES CITED: R v Tran [2005] NSWCCA 35 The Queen v Lowe [1984] HCA 46; 154 CLR 606 The Queen v Postiglione [1997] HCA 26; 189 CLR 295

Crown - Respondent PARTIES: Suafoa Afele - Applicant

FILE NUMBER(S): CCA 2005/773

D Woodburne - Crown COUNSEL: C Craigie SC - Applicant

S Kavanagh - Crown SOLICITORS: SE O'Connor - Applicant