Koimala v R 25 May 2008

The applicant, an Aboriginal male aged 17 years and five months at the time of the offence and just over 18 years at the time of sentence, was sentenced in the Darwin Supreme Court to a total effective sentence of six years and six months imprisonment with a non-parole period of four years and seven months following his pleas of guilty
to two counts of aggravated assault and three counts of having sexual intercourse with a 19 year old female without consent.

The applicant, who was a youth for the purposes of the Youth Justice Act, sought leave to appeal against severity of sentence on the grounds that the sentencing judge:

1. Erred in failing to give adequate weight to the pleas of guilty.

2. Erred in reducing the discount for the plea of guilty by having regard to the strength of the prosecution case and characterising the plea as “recognition of the inevitable”.

3. Erred in setting an excessive non-parole period, in that:

(a) The non-parole period is 70% of the overall effective term of imprisonment,

(b) In relation to offenders under the age of 18 years, the Youth Justice Act permits the Court to set a non-parole period of less than the statutory minimum fixed by the Sentencing Act.

The Crown did not oppose the grant of leave on any of the proposed grounds.

The appeal was listed for hearing on 30 October 2008. The appeal was never heard by the court as the appellant abandoned the appeal prior to the hearing of the appeal after being reminded by the court that should the court be required to sentence afresh, the court also possessed the power to increase the sentence.