Baleiovalau v R [2009] NSWCCA 153

Baleiovalau v R [2009] NSWCCA 153

The sentencing judge properly assessed the individual sentences and then made a substantial downward adjustment for totality. She was not required to preserve the 18-month difference between the applicant and Kinikini that arose at the individual sentence level from Kinikini's Form 1 offence. The six-month overall difference did not amount to marked disparity or create a justifiable sense of grievance, particularly given differences in age, criminal history, rehabilitation prospects, existing sentence position, and aspects of participation in the Parkside robbery. The judge also expressly considered the applicant's existing sentence, backdated the new sentence to 12 April 2006, and...

Jurisdiction
Australia
Judgment Date
29 May 2009
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['parity' 'totality' 'form 1 Offences' 'aggravated Armed Robbery' 'conspiracy' 'sentence Accumulation and Concurrence']
['criminal Law' 'sentencing'] ['parity' 'totality' 'form 1 Offences' 'aggravated Armed Robbery' 'conspiracy' 'sentence Accumulation and Concurrence']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge failed to have proper regard to the principles of parity when sentencing the applicant by imposing an overall effective sentence only six months shorter than that imposed on co-offender Semisi Kinikini, despite Kinikini having a serious Form 1 offence taken into account.' 'Whether the sentencing judge failed to have proper regard to the principle of totality by insufficiently considering the sentence the applicant was already serving when fixing the total non-parole period.']

Ratio Decidendi

The sentencing judge properly assessed the individual sentences and then made a substantial downward adjustment for totality. She was not required to preserve the 18-month difference between the applicant and Kinikini that arose at the individual sentence level from Kinikini's Form 1 offence. The six-month overall difference did not amount to marked disparity or create a justifiable sense of grievance, particularly given differences in age, criminal history, rehabilitation prospects, existing sentence position, and aspects of participation in the Parkside robbery. The judge also expressly considered the applicant's existing sentence, backdated the new sentence to 12 April 2006, and...

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal dismissed.']