Legal Research
Cases
R v Elliff

R v Elliff

Case [2021] NSWDC 153 15 January 2021

Sentencing

Imprisonment

Home Detention

Intensive Correction Orders

Mitigating Factors

Remorse

Unlikely to Re-offend

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Elliff [2021] NSWDC 153
Hearing dates: 30 November 2020; 3 December 2020; 15 January 2021; 12 March 2021
Date of orders: 15 January 2021
Decision date: 15 January 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
I impose an aggregate a term of imprisonment of 2 years, 3 months. The offender is referred to CCS for a sentence assessment report relating to imposition of a home detention condition and suitability for an ICO generally, pursuant to s 17D(3) of the Crimes (Sentencing Procedure) Act 1999. Pursuant to s 17C(2)(a) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is stayed pending the completion of the assessment: at [100].

Catchwords:
SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend
SENTENCING — Penalties — Imprisonment — Intensive correction orders — Home detention
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Establishing relevant matters — Factual basis for sentence — Form 1 offences — General principles — Moral culpability — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure — Disputed facts — Findings of fact — Pre-sentence reports
SENTENCING — Subjective considerations on sentence — Hardship — Mental illness — Special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
R v Giang [2001] NSWCCA 276
Podesta v R [2009] NSWCCA 97
R v Shortland [2018] NSWCCA 34
R v Lee [2019] NSWCCA 15
R v Kember [2020] NSWCCA 152
Dipankear v R [2010] NSWCCA 156
R v Togias (2001) 127 A Crim R 23
R v SLR (2000) 116 A Crim R 150
HJ v R [2014] NSWCCA 21
R v Pullen [2018] NSWCCA 264
R v Wany [2020] NSWCCA 318

Texts Cited:
Second Reading Speech for the Crimes (Public Justice) Amendment Bill (Legislative Assembly, hansard, 17 May 1990)

Category: Sentence
Parties:
Regina (Crown)
Tasmin Elliff (Offender)
Representation:
Counsel:

Mr K Gilson (Crown Prosecutor)

Mr M Johnston SC; Mr T Hammond; (Counsel for the offender)

Solicitor:

Mr N Leach (Solicitor for the Office of the Director of Public Prosecutions)
Mr D Lestal (Solicitor for the offender, Santone Lawyers)

File Number(s): 2019/333639

Judgment

The offender appears for sentence today, having pleaded guilty to the following offences:

Sequence 3, do act intending to pervert the course of justice contrary to s 319 of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment with no standard non-parole period.

Sequence 4, influence witness with intent to procure acquittal of serious indictable offence contrary to ss 321(1) (a) & 324 of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment with no standard non-parole period.

Sequence 5, do act intending to pervert the course of justice contrary to s 319 of the

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 R v Elliff

Details

AGLC: R v Elliff [2021] NSWDC 153
Case: [2021] NSWDC 153
Decision Date: 15 January 2021

CaseChat Overview and Summary

In the case of R v Elliff, the defendant was brought before the court to address a series of criminal offences. The nature of the dispute centred around sentencing considerations, including mitigating factors such as the defendant's good character, the plea of guilty, rehabilitation efforts, and the likelihood of reoffending. Additionally, the court had to determine appropriate penalties, considering options such as imprisonment, intensive correction orders, and home detention.

The legal issues that the court was required to decide involved the assessment of mitigating factors in the context of sentencing. The court needed to weigh the defendant's good character and remorse against the objective seriousness of the offences and the purposes of sentencing. Furthermore, the court had to consider the relevance of the defendant's co-offenders, the need for deterrence, and the factual basis for the sentence. The court also had to establish relevant matters and form an opinion on the defendant's moral culpability.

The court's reasoning was thorough, taking into account all relevant mitigating factors and the principles of sentencing. The court recognised the defendant's good character and the plea of guilty as significant mitigating factors. The court also considered the defendant's rehabilitation efforts and the low likelihood of reoffending. In balancing these factors against the objective seriousness of the offences and the purposes of sentencing, the court determined that an aggregate term of imprisonment of 2 years and 3 months was appropriate. The court further directed that the term of imprisonment be stayed pending the completion of an assessment report for potential home detention and suitability for an intensive correction order.

The final orders of the court included the imposition of a 2-year, 3-month term of imprisonment, which was to be stayed pending the assessment report. The court also referred the defendant to the Community Corrections Service for a sentence assessment report regarding the imposition of a home detention condition and suitability for an intensive correction order. This decision reflects the court's careful consideration of all relevant factors in reaching a balanced and just outcome.

Orders

Orders of the court

I impose an aggregate a term of imprisonment of 2 years, 3 months. The offender is referred to CCS for a sentence assessment report relating to imposition of a home detention condition and suitability for an ICO generally, pursuant to s 17D(3) of the Crimes (Sentencing Procedure) Act 1999. Pursuant to s 17C(2)(a) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is stayed pending the completion of the assessment: at [100].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Elliff [2021] NSWDC 153

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 12 of 12 shown

Carbone v R
[2020] NSWCCA 318 Para 96

…As indicated by the Court in R v Wany [2020] NSWCCA 318 a sentencing judge is required to form a view as to which method of serving the sentence of imprisonment – by ICO or in custody – is more likely to address an offender’s risk of re-offending: at [61]. This determination is to be made without any pre-conception…
Wany v Director of Public Prosecutions
[2020] NSWCA 318 Para 97

…med at imposing a just and appropriate sentence: s 66(3) Crimes (Sentencing Procedure) Act 1999 ; R v Fangaloka [2019] NSWCCA 173 at [65]; Wany v DPP [2020] NSWCA 318.…
Kember v The Queen
[2020] NSWCCA 152 Para 89

…The Crown also refered to R v Kember [2020] NSWCCA 152, in relation to the process the court must undertake in determining whether an ICO is appropriate in a given case. In R v Kimber the sentencing judge at first instance did not regard a sentence of more than three years was necessary. His Honour nevertheless obse…
R v Fangaloka
[2019] NSWCCA 173 Para 97

…s and make a discretionary judgment aimed at imposing a just and appropriate sentence: s 66(3) Crimes (Sentencing Procedure) Act 1999 ; R v Fangaloka [2019] NSWCCA 173 at [65]; Wany v DPP [2020] NSWCA 318.…
Lee v R
[2019] NSWCCA 15 Para 88

…jurisprudence in this area summarised by Hidden JA in R v Shortland [2018] NSWCCA 34 at [105] – [125]. It also refers to the recent case of R v Lee [2019] NSWCCA 15, where an offender's 10-year-old son would be left without a parent but even accepting that hardship would be highly exceptional this must be balanced…
R v Pullen
[2018] NSWCCA 264 Para 95

…As Harrison J said in R v Pullen [2018] NSWCCA 264, where an offender's prospects of rehabilitation are high and where the risk of reoffending will be better managed in the community an ICO may be available, and here the offender acknowledges that additional conditions such as home detention may be imposed.…
R v Shortland
[2018] NSWCCA 34 Para 88

…The Crown refers to the jurisprudence in this area summarised by Hidden JA in R v Shortland [2018] NSWCCA 34 at [105] – [125]. It also refers to the recent case of R v Lee [2019] NSWCCA 15, where an offender's 10-year-old son would be left without a parent but even accepting that hardship would be highly exceptiona…
HJ v R
[2014] NSWCCA 21 Para 91

…he mother of small children is a relevant factor to be taken into account: R v Togias (2001) 127 A Crim R 23; R v SLR (2000) 116 A Crim R 150; HJ v R [2014] NSWCCA 21.…
Dipangkear v R
[2010] NSWCCA 156 Para 91

…99 ), but ultimately submits that the sentence should be served in the community. By analogy with the earlier statements of Whealy J in Dipankear v R [2010] NSWCCA 156 at [34], the offender submits that if a custodial sentence is required, but there is evidence of extreme hardship a court may take into account the e…
Podesta v The Queen
[2009] NSWCCA 97 Para 47

…tempting to protect a family member is a relevant consideration when sentencing for an offence under section 319 of the Crimes Act 1900 : Podesta v R [2009] NSWCCA 97 at [21]. I accept that she had got into something out of her depth. She was pregnant, vulnerable and unable to control the situation in which she fou…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 2

…the Chief Justice in the guideline judgment ( Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).…
R v Giang
[2001] NSWCCA 276 Para 46

…In short, her actions took place over a period of about two weeks in May 2019. She did not stand to directly benefit from the offences: R v Giang [2001] NSWCCA 276 at [26]-[27]. The primary motivation arose out of a misguided sense of loyalty for her former partner, the father of her unborn child, and an attempt to…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Elliff [2021] NSWDC 153
Hearing dates:	30 November 2020; 3 December 2020; 15 January 2021; 12 March 2021
Date of orders:	15 January 2021
Decision date:	15 January 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	I impose an aggregate a term of imprisonment of 2 years, 3 months. The offender is referred to CCS for a sentence assessment report relating to imposition of a home detention condition and suitability for an ICO generally, pursuant to s 17D(3) of the Crimes (Sentencing Procedure) Act 1999. Pursuant to s 17C(2)(a) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is stayed pending the completion of the assessment: at [100].
Catchwords:	SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Penalties — Imprisonment — Intensive correction orders — Home detention SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Establishing relevant matters — Factual basis for sentence — Form 1 offences — General principles — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Disputed facts — Findings of fact — Pre-sentence reports SENTENCING — Subjective considerations on sentence — Hardship — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 R v Giang [2001] NSWCCA 276 Podesta v R [2009] NSWCCA 97 R v Shortland [2018] NSWCCA 34 R v Lee [2019] NSWCCA 15 R v Kember [2020] NSWCCA 152 Dipankear v R [2010] NSWCCA 156 R v Togias (2001) 127 A Crim R 23 R v SLR (2000) 116 A Crim R 150 HJ v R [2014] NSWCCA 21 R v Pullen [2018] NSWCCA 264 R v Wany [2020] NSWCCA 318
Texts Cited:	Second Reading Speech for the Crimes (Public Justice) Amendment Bill (Legislative Assembly, hansard, 17 May 1990)
Category:	Sentence
Parties:	Regina (Crown) Tasmin Elliff (Offender)
Representation:	Counsel: Mr K Gilson (Crown Prosecutor) Mr M Johnston SC; Mr T Hammond; (Counsel for the offender) Solicitor: Mr N Leach (Solicitor for the Office of the Director of Public Prosecutions) Mr D Lestal (Solicitor for the offender, Santone Lawyers)
File Number(s):	2019/333639