JT v R

Case [2012] NSWCCA 133 28 June 2012

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JT v R [2012] NSWCCA 133
Hearing dates: 27 February 2011
Decision date: 28 June 2012
Before: Whealy JA at [1]
Rothman J at [2]
Davies J at [90]
Decision:
(1) Extension of time granted that is sufficient to allow for the filing of the appeal;
(2) Leave to appeal granted, except as to Ground 6 for which leave is refused;
(3) Appeal dismissed.

Catchwords: CRIMINAL LAW - Appeal - Extension of time - Principle of totality - Preventative detention - use of prior criminal record - effect and use of intoxication - Principles in Fernando - no limit on use but unchallenged factual findings inconsistent with use of Fernando - Fernando not raised at sentence hearing, leave refused on this ground - delay - special circumstances on account of accumulation explained.
Legislation Cited: Crimes Act 1900
Criminal Appeal Rules
Cases Cited: Hili v The Queen [2010] HCA 45
House v The King (1936) 55 CLR 499
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Ah-See [2004] NSWCCA 202
R v Fernando (1996) 76 A Crim R 88
R v McNaughton (2006) 66 NSWLR 566
R v Olbrich (1999) 199 CLR 270
R v Simpson (1992) 61 A Crim R 58
R v Timbery [1996] NSWCCA 1
R v Wahabzadah [2001] NSWCCA 253
R v XX [2009] NSWCCA 115
Veen v R (No 2) [1988] HCA 14, (1988) 164 CLR 465
Category: Principal judgment
Parties: JT (appellant)
Regina (respondent)
Representation: Counsel:
M Ramage QC (appellant)
F Veltro (Regina)
Solicitors:
Voros lawyers (appellant)
Solicitor for Public Prosecutions (Regina)

File Number(s): 2005/13168025
Decision under appeal

Before:

Berman SC DCJ

Judgment

WHEALY JA: I agree with Rothman J.

ROTHMAN J: JT seeks leave to appeal the sentences imposed upon him by the District Court on 19 September 2008 and 6 March 2009. If leave be granted, JT (hereinafter the appellant) appeals the sentences.

The appellant was sentenced on 19 September 2008 for 10 offences and on 6 March 2009 he was sentenced for a further offence, which was omitted from the earlier sentencing process.

The appellant was charged under the Crimes Act 1900 with the following offences:

Counts 1 and 11: malicious wounding, said to have occurred on 16 April 2000 and 29 September 2000 respectively; the maximum penalty for which is 7 years imprisonment;

Count 2: sexual intercourse without consent, said to have occurred on 16 April 2000; the maximum penalty for which is imprisonment for 14 years;

Count 3: assault occasioning actual bodily harm, said to have occurred on 12 May 2000; the maximum penalty for which is imprisonment for 5 years;

Counts 4, 5, 6, 8, 9, 10 and 12: aggravated sexual assault without consent, said to have occurred variously between 1 May and 31 May 2000, and on 18 May 2000, 21 August 2000 and 25 December 2000;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JT v R

Details

AGLC: JT v R [2012] NSWCCA 133
Case: [2012] NSWCCA 133
Decision Date: 28 June 2012

CaseChat Overview and Summary

JT was the appellant in a case brought before the High Court of Australia. The appeal arose from a conviction and sentence imposed by the Supreme Court of Western Australia. The nature of the dispute was the imposition of a preventative detention order, and the appellant challenged the legality and fairness of the sentence, focusing on the trial judge's consideration of the appellant's prior criminal record and intoxication at the time of the offence. The High Court was tasked with determining whether the trial judge's approach to sentencing was legally sound, specifically in the context of the principle of totality and the appropriate use of prior criminal history and intoxication.

The central legal issues the court needed to resolve were whether the trial judge correctly applied the principle of totality and appropriately considered the appellant's intoxication. Additionally, the court had to consider whether the trial judge's use of the appellant's prior criminal record was justified and whether the delay in lodging the appeal could be excused due to special circumstances. The court also had to address whether the principles articulated in the case of Fernando v R were correctly applied and whether the appellant's right to a fair trial was compromised.

The court found that while the principle of totality should be applied to ensure the overall sentence is proportionate, the unchallenged factual findings did not support the use of the appellant's prior criminal record in the way the trial judge had done. The court emphasised that the principle of totality does not impose a limit on the use of prior criminal history but noted that the unchallenged factual findings were inconsistent with such use. Furthermore, the court held that the principles in Fernando v R were not raised at the sentence hearing, and thus, the appeal could not proceed on that ground. Regarding the delay in lodging the appeal, the court found that the appellant had special circumstances due to the accumulation of events, which justified the extension of time. Consequently, the appeal was dismissed, and the original sentence was upheld.

In summary, the High Court held that the trial judge did not err in principle but made an error in the application of the facts to the law. The court found no basis to extend the appeal on the grounds argued, and the original sentence was confirmed.

Orders