Kaisuva v R; Soro v R [2021] NSWCCA 326

Kaisuva v R; Soro v R [2021] NSWCCA 326

Leave to appeal was granted to both applicants. Error was established in relation to Jacob Kaisuva because the sentencing judge doubted unchallenged evidence that he had attended Odyssey House, which likely affected the assessment of rehabilitation. Error was established in relation to Viliame Soro because, on the majority reasoning, his unintended hand injury sustained while punching the door could be considered extra-curial punishment and because the finding that he lied to the forensic psychologist was made without sufficient evidence. However, on resentencing, given the serious nature of the offending, the applicants' criminal records, guarded rehabilitation prospects, the 25%...

Jurisdiction
Australia
Judgment Date
30 December 2021
Procedural Posture
Criminal Appeal Against Sentence / Applications for Leave to Appeal Against Sentences Imposed in the District Court of NSW
Outcome
Leave to appeal granted for both applicants; appeals dismissed.
Legal Topics
['aggravated Break and Enter Dwelling and Commit Serious Indictable Offence' 'appeal Against Sentence' 'erroneous Findings of Fact' 'objective Seriousness' 'rehabilitation' 'remorse' 'parity' 'extra Curial Punishment' 'self Inflicted Injury' 'adverse Inference']
['criminal Law' 'sentencing'] ['aggravated Break and Enter Dwelling and Commit Serious Indictable Offence' 'appeal Against Sentence' 'erroneous Findings of Fact' 'objective Seriousness' 'rehabilitation' 'remorse' 'parity' 'extra Curial Punishment' 'self Inflicted Injury' 'adverse Inference']

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Procedural Posture

Criminal Appeal Against Sentence / Applications for Leave to Appeal Against Sentences Imposed in the District Court of NSW

Legal Issues

  1. 1 ["Whether the sentencing judge made erroneous findings about Jacob Kaisuva's motivation for attending the victim's premises and whether that affected objective seriousness." 'Whether the sentencing judge erred in doubting that Jacob Kaisuva had attended Odyssey House and in assessing rehabilitation, prospects of rehabilitation, contrition and remorse.' 'Whether the sentencing judge failed to give reasons for the difference between the sentences imposed on Viliame Soro and his co-offender.' "Whether the sentencing judge erred in finding that extra-curial punishment did not apply to Viliame Soro's fractured hand because the injury was self-inflicted." 'Whether the sentencing judge erred in finding that Viliame Soro lied to the forensic psychologist about alcohol consumption since arrest.' 'Whether, on resentencing, any lesser sentence was warranted in law.']

Ratio Decidendi

Leave to appeal was granted to both applicants. Error was established in relation to Jacob Kaisuva because the sentencing judge doubted unchallenged evidence that he had attended Odyssey House, which likely affected the assessment of rehabilitation. Error was established in relation to Viliame Soro because, on the majority reasoning, his unintended hand injury sustained while punching the door could be considered extra-curial punishment and because the finding that he lied to the forensic psychologist was made without sufficient evidence. However, on resentencing, given the serious nature of the offending, the applicants' criminal records, guarded rehabilitation prospects, the 25%...

Court Disposition

Leave to appeal granted for both applicants; appeals dismissed.

Orders

  • ['On the application for leave to appeal by Jacob Kaisuva: grant leave to appeal.' 'On the application for leave to appeal by Jacob Kaisuva: appeal dismissed.' 'On the application for leave to appeal by Viliame Soro: grant leave to appeal.' 'On the application for leave to appeal by Viliame Soro: appeal dismissed.']