R v Tyrone Chishimba, Tyrone Chishimba v R, Likumbo Makasa v R, R v Likumbo Makasa, Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2011] NSWCCA 212

R v Tyrone Chishimba, Tyrone Chishimba v R, Likumbo Makasa v R, R v Likumbo Makasa, Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2011] NSWCCA 212

Although the sentencing judge erred by adopting a mathematical approach to protective custody, the sentences imposed on Makasa for counts 8, 10 and 16 were lenient but not below the lower limit of the range available in a proper exercise of sentencing discretion. The offences occurred on the same day within a few hours, the complainant was 15 years and some months old, there was no standard non-parole period, and Makasa admitted the intercourse that founded the convictions. The Crown appeal against those sentences was therefore dismissed.

Jurisdiction
Australia
Judgment Date
13 September 2011
Procedural Posture
Criminal Appeal Against Sentence / Court of Criminal Appeal Reasons for Dismissal of Crown Appeal Against Sentence Insofar as It Related to Sentences Imposed on Makasa on Counts 8, 10 and 16
Outcome
Crown appeal dismissed insofar as it related to the sentences imposed on Makasa for the offences charged in counts 8, 10 and 16 of the indictment.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'sexual Intercourse With Child Aged Above 14 and Under 16' 'manifest Inadequacy' 'non Parole Period' 'special Circumstances' 'protective Custody']
['criminal Law' 'sentencing'] ['aggravated Sexual Intercourse Without Consent' 'sexual Intercourse With Child Aged Above 14 and Under 16' 'manifest Inadequacy' 'non Parole Period' 'special Circumstances' 'protective Custody']

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Procedural Posture

Criminal Appeal Against Sentence / Court of Criminal Appeal Reasons for Dismissal of Crown Appeal Against Sentence Insofar as It Related to Sentences Imposed on Makasa on Counts 8, 10 and 16

Legal Issues

  1. 1 ['Whether the sentences imposed on Makasa for the offences under s 66C(3) of the Crimes Act charged in counts 8, 10 and 16 were manifestly inadequate.' 'Whether the sentencing judge erred in varying the statutory ratio between the non-parole period and the balance of the term.' 'Whether the sentencing judge erred in adopting a mathematical approach to the issue of protective custody.' "Whether Makasa's conditional liberty was an aggravating factor affecting sentence."]

Ratio Decidendi

Although the sentencing judge erred by adopting a mathematical approach to protective custody, the sentences imposed on Makasa for counts 8, 10 and 16 were lenient but not below the lower limit of the range available in a proper exercise of sentencing discretion. The offences occurred on the same day within a few hours, the complainant was 15 years and some months old, there was no standard non-parole period, and Makasa admitted the intercourse that founded the convictions. The Crown appeal against those sentences was therefore dismissed.

Court Disposition

Crown appeal dismissed insofar as it related to the sentences imposed on Makasa for the offences charged in counts 8, 10 and 16 of the indictment.

Orders

  • ['The Crown appeal against sentence was dismissed insofar as it related to the sentences imposed on Makasa for the offences charged in counts 8, 10 and 16 of the indictment.' "Makasa's sentences in relation to counts 8, 10 and 16 were varied pursuant to s 59 Crimes (Sentencing Procedure) Act 1999 to commence on 4...