Baleiovalau v R [2015] NSWCCA 305

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Baleiovalau v R [2015] NSWCCA 305 Hearing dates: 19 November 2015 Decision date: 02 December 2015 Before: Gleeson JA at [1]; Bellew J at [78]; R S Hulme AJ at [79] Decision: 1 Grant leave to appeal.

2 Appeal allowed.

3 The sentence imposed in the District Court on 21 August 2014 is quashed.

4 The applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 2 years commencing on 11 April 2012 and expiring on 10 April 2014, with a balance of term of 3 years commencing on 11 April 2014 and expiring on 10 April 2017. The Court notes that the applicant is now eligible for release on parole. Catchwords: CRIMINAL LAW – appeals – sentencing – applicant sentenced to term of imprisonment for attempted robbery offence committed in 2004 contrary to s 97(2) of the Crimes Act 1900 (NSW) – accumulation of sentence for 2004 offence on earlier sentence for similar armed robbery offences in 2005 resulted in an overall term of 12 years with an overall non-parole period of 10 years – whether sentencing judge erred in assessment of objective seriousness of 2004 offence – whether judge failed to give effect to principle of totality – whether overall term of sentence in proportion to overall non-parole period excessive – whether judge erred by comparing applicant's circumstances with those of an alleged co-offender

CRIMINAL LAW – appeals – sentencing – resentence – likely sentence imposed if applicant dealt with for all offences at same time – finding of special circumstances on the basis of accumulation Legislation Cited: Crimes Act 1900 (NSW) s 97 Criminal Appeal Act 1912 (NSW) s 6(3) Cases Cited: Baleiovalau v R [2009] NSWCCA 153 Barrett v R [2011] NSWCCA 213 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Kentwell v R [2014] HCA 37; 252 CLR 201 LG v R [2012] NSWCCA 249 Mill v The Queen [1988] HCA 70; 166 CLR 59 Mulato v R [2006] NSWCCA 282 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Todd [1982] 2 NSWLR 517 Wu v R [2011] NSWCCA 102; 211 A Crim R 88 Category: Principal judgment Parties: Tomu Baleiovalau (Applicant) Regina (Crown) Representation: Counsel: W Hunt (Applicant) H Baker (Crown)