COUNSEL: D. Frearson SC - Crown C. Smith - Applicant
SOLICITORS: S. Kavanagh - Crown S.E. O'Connor - Applicant
CATCHWORDS: Criminal Law - Sentencing - Application of s 21A of Crimes (Sentencing Procedure) Act - vulnerability of victim - multiple victims and series of criminal acts - erroneously taking into account aggravating factors.
DECISION: The appeal is allowed in part. The sentences in respect of the two offences of passing a valueless cheque are quashed and in lieu the applicant is sentenced to a fixed term of imprisonment for 6 months to date from 18 June 2004 and which expired on 17 December 2004. The sentence for the offence of using a false implement and taking into account the Form 1 matters is quashed and in lieu the applicant is sentenced to imprisonment for 4 years and 6 months. This sentence is to date from 18 December 2004. There should be a non-parole period specified of 2 years 6 months from the same date and to expire on 17 June 2007, the date upon which the applicant is eligible to be released to parole.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2004/3301 CCAP
GROVE J HOWIE J HALL J
WEDNESDAY 20 APRIL 2005
REGINA v TONY PHILLIP TADROSSE
Judgment
GROVE J: I agree with Howie J.
HOWIE J: The applicant, Tony Tadrosse, seeks leave to appeal against sentences imposed upon him by Delaney DCJ (the Judge). He pleaded guilty in the Local Court to eleven offences of dishonesty and was committed for sentence to the District Court where he adhered to his pleas. He asked the Judge to take into account another 22 matters of a similar kind on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act. The offences all arose from the fraudulent use made by the applicant of documents providing him with false identities. The Judge imposed upon the applicant a total sentence of imprisonment for 6 years with an overall period that the applicant must serve before being eligible for release to parole of 3 years 6 months. I will return to consider the sentences imposed in more detail shortly.
There were three clear errors made by the Judge when sentencing the applicant. The Crown concedes so much. The first error arose from his Honour’s reference to the offences occurring over a period amounting to 18 months when in fact the offences took place over a period of 6 months. This was obviously…
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.
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AGLC
R v Tadrosse [2005] NSWCCA 145
Case
[2005] NSWCCA 145
Decision Date
CaseChat Overview and Summary
The case of R v Tadrosse involved the sentencing of the defendant, Tadrosse, who had been convicted of multiple criminal offences against several victims. The court was tasked with determining the appropriate sentence in accordance with section 21A of the Crimes (Sentencing Procedure) Act, which mandates consideration of the vulnerability of the victims and the nature of the criminal acts. The New South Wales Supreme Court presided over the matter, with Justice Hulme delivering the judgment.
The primary legal issue before the court was whether the sentence imposed by the trial judge adequately reflected the statutory requirements under section 21A. Specifically, the court had to examine whether the trial judge correctly assessed the vulnerability of the victims and the aggravating factors related to the series of criminal acts. The defence argued that the trial judge had erroneously taken into account certain aggravating factors that should not have been considered in determining the sentence.
Justice Hulme reviewed the trial judge's sentencing remarks and found that there were indeed errors in the application of section 21A. The trial judge had not appropriately considered the specific vulnerabilities of each victim and had incorrectly included factors that were not relevant to the sentencing process under the Act. The court concluded that the trial judge's approach did not align with the statutory framework, and as such, the sentence imposed was inadequate. Consequently, the appeal was allowed, and the matter was remitted back to the trial judge for resentencing.
In light of the court's findings, it was ordered that the case be returned to the trial judge to reassess the sentence in accordance with the correct application of section 21A of the Crimes (Sentencing Procedure) Act. The trial judge was directed to specifically consider the vulnerability of each victim and the nature of the criminal acts without including any erroneously identified aggravating factors.