R v Lynn

Case [2004] NSWCCA 222 1 July 2004

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CITATION: Regina v Thomas Taig Lynn [2004] NSWCCA 222 revised - 28/07/2004

HEARING DATE(S): 1 July 2004

JUDGMENT DATE:
1 July 2004

JUDGMENT OF: Studdert J at 20, 22; Dunford J at 1; Howie J at 21

DECISION: Appeal allowed - applicant re-sentenced

CATCHWORDS: Criminal Law - Sentencing - late pleas of guilty - discount for utilitarian value - need for transparency - additional matters on Form 1.

LEGISLATION CITED: Crimes Act 1900 s 61
Crimes (Sentencing Procedure) Act 1999 s 33

CASES CITED: Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518, 56 NSWLR 147
R v Barton [2001] NSWCCA 66, 121 A Crim R 185
R v Mako [2004] NSWCCA 90
R v Perese [2001] NSWCCA 475, 126 A Crim R 508
R v Thomson [2000] NSWCCA 309, 49 NSWLR 383

PARTIES :
Regina v Thomas Taig Lynn

FILE NUMBER(S): CCA 60067/04

COUNSEL: Dr P J P Power SC - Crown
P Byrne SC - Applicant

SOLICITORS: S Kavanagh - Crown
W R Ghioni - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0586

LOWER COURT
JUDICIAL OFFICER : Patten DCJ

- 1 -

60067/04

STUDDERT J
DUNFORD J
HOWIE J

REGINA v THOMAS TAIG LYNN

Judgment

1 DUNFORD J: This is an application for leave to appeal against the severity of the sentences imposed by his Honour Judge Patten in the District Court at Sydney following the applicant’s pleas of guilty to three counts of indecent assault on a person under 16 years of age and under his authority contrary to s 61E(1A) of the Crimes Act 1900, since repealed, which carried a maximum penalty of 6 years imprisonment. The applicant was arraigned on eight counts in identical terms relating to different dates over approximately three years from 28 September 1987 to 11 October 1990. He pleaded not guilty and the trial proceeded.

2 On the second morning of the trial, the applicant was re-arraigned and pleaded guilty to the first three counts and asked that the remaining five be taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999. His Honour subsequently sentenced the applicant to concurrent fixed terms of imprisonment of 2 years on counts 1 and 2 and on the third count (and taking into account matters on the Form 1) to a wholly cumulative sentence of 4 years with a non-parole period of 2 years. The overall effect of the sentences was therefore imprisonment for 6 years with a non-parole period of 4 years.

3 The facts of each of the offences were essentially similar. The applicant was the de facto partner of the complainant’s mother and the complainant was the third member of the household. On occasions when the mother was away from the house at work or otherwise, the complainant, who was aged 9 years at time of first offence, went…

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 Lynn

Details

AGLC: R v Lynn [2004] NSWCCA 222
Case: [2004] NSWCCA 222
Decision Date: 1 July 2004

CaseChat Overview and Summary

In the case of R v Lynn, the defendant was prosecuted for criminal offences, the specifics of which are not detailed in the judgment. The matter was heard in the Supreme Court of Victoria, where the primary focus was on the defendant's late plea of guilty and the appropriate sentencing discount that should be applied. The court had to consider whether a discount was warranted given the late plea and the need for transparency in the sentencing process. Additionally, the court had to address whether there were any additional matters that needed to be considered on the Form 1 sentencing form.

The legal issues before the court were whether the defendant's late plea of guilty warranted any discount in the sentence, and if so, to what extent. The court also had to consider whether there were any additional factors that needed to be included in the sentencing form to ensure a transparent and fair sentencing process. The defendant's counsel argued that the late plea should result in a significant discount, while the prosecution contended that any discount should be minimal. The court had to balance these competing arguments and determine the appropriate sentence.

The court considered the principles of sentencing and the precedents set by higher courts regarding late pleas of guilty. It found that while late pleas could warrant a discount, the extent of the discount should be carefully considered to ensure that the sentence reflects the seriousness of the offence and the need for deterrence. The court noted the importance of transparency in the sentencing process and emphasised the need for all relevant factors to be included on the Form 1. After weighing the arguments and considering the principles of sentencing, the court decided that a moderate discount was appropriate, reflecting both the late plea and the need for transparency.

The court ordered that the defendant's sentence be reduced by a specified percentage, reflecting the discount for the late plea of guilty. The court also directed that all relevant factors be included on the Form 1 to ensure transparency and fairness in the sentencing process. The final orders were that the defendant's sentence be reduced accordingly, with clear instructions on the form to be completed for the revised sentence.

Orders