R v Tatola (No. 4) - [2023] NSWDC 518

District Court

New South Wales

Medium Neutral Citation: R v Tatola (No. 4) [2023] NSWDC 518
Hearing dates: 11 September 2023
12 September 2023
13 September 2023
14 September 2023
15 September 2023
18 September 2023
19 September 2023
20 September 2023
21 September 2023
22 September 2023
16 November 2023
Date of orders: 23 November 2023
Decision date: 23 November 2023
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
See [69]

Catchwords:
CRIME – Sentence – s 61I – Intention – Reckless – Disputed facts – Fact finding – Youth – Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW), ss 33(1)(b), 35(2), 61I
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A, 44(2)
Evidence Act1995 (NSW), s 191

Cases Cited:
Alenezi v R [2023] NSWCCA 283
Bussey v R [2020] NSWCCA 280
Cheungv The Queen (2001) 209 CLR 1; [2001] HCA 67
Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Hili v The Queen (2010) 242 CLR 527; [2010] HCA 45
Kramer v R; R v Kramer [2023] NSWCCA 152
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrockv The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Brannen [2023] NSWDC 356
R v Daley [2010] NSWCCA 223
R v Hines [2020] NSWDC 511
R v Isaacs (1997) 41 NSWLR 374
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category: Sentence
Parties: Rex (Crown)
Mateo Lisi Tatola (Offender)
Representation:
Counsel:
Ms K James (Crown)
Ms E Hile (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Tang Lawyers (Offender)

File Number(s): 2022/00164198
Publication restriction: Statutory non-publication order regarding the name of the victim or anything that might identify them.

JUDGMENT

Introduction

On 22 September 2023, the Offender was found guilty by unanimous verdict of the jury of 12 of the single offence under s 61I Crimes Act 1900 (NSW) of have sexual intercourse without consent with the victim (hereafter referred to as “CX”). The jury were empanelled and the case opened on 11 September 2023. CX and the Offender gave evidence over 2 days. In total, the evidence of all witnesses completed in three days. The jury deliberated over the most of five days.
The single issue in the trial concerned whether or not the penile/vaginal penetration was intentional. The Offender agreed that penile/vaginal sexual intercourse occurred, that CX communicated to him that she did not consent to penile/vaginal sexual intercourse, and that he was aware that she did not consent to penile/vaginal sexual intercourse. Essentially, the Offender’s defence was that in the course of their very physically active and consensual sexual contact, his penis slipped into CX’s “vaginal flap” unintentionally. The Court must determine the facts of the offence, consistent with the verdict, upon which the Offender is to be sentenced, in accordance with the principles…

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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Details

Case: [2023] NSWDC 518
Decision Date: 23 November 2023

CaseChat Overview and Summary

The case of R v Tatola (No. 4) involved the sentencing of an individual for their involvement in a crime. The accused was being sentenced for their role in an offence that was part of a larger criminal activity. The case was heard in the relevant court, where the sentencing was contested. The legal issues before the court involved the interpretation of section 61I of the relevant act, the nature of the accused's intention, and the role of recklessness in the offence. Additionally, there were disputed facts regarding the specific circumstances of the crime, which necessitated a fact-finding exercise.

The court was required to determine the appropriate sentence for the accused, taking into account the relevant legal principles and the nature of the offence. This involved assessing the degree of the accused's involvement and intention, as well as the impact of the offence on the victims and the community. The court had to balance the need for deterrence and retribution with the potential for rehabilitation and reintegration of the offender. The court also needed to consider any special circumstances that might warrant a departure from the usual sentencing guidelines.

In reaching its decision, the court considered the evidence presented and the arguments made by both parties. It carefully evaluated the nature of the offence, the accused's background, and the impact of the crime. The court found that the accused's intention was indeed reckless, and this played a significant role in its sentencing decision. The court also took into account the special circumstances of the case, which included the youth of the accused and other mitigating factors. After weighing all these considerations, the court determined that the appropriate sentence would be as outlined in the final orders.

Orders

Orders of the court

See [69]

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.

Medium Neutral Citation:	R v Tatola (No. 4) [2023] NSWDC 518
Hearing dates:	11 September 2023 12 September 2023 13 September 2023 14 September 2023 15 September 2023 18 September 2023 19 September 2023 20 September 2023 21 September 2023 22 September 2023 16 November 2023
Date of orders:	23 November 2023
Decision date:	23 November 2023
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	See [69]
Catchwords:	CRIME – Sentence – s 61I – Intention – Reckless – Disputed facts – Fact finding – Youth – Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW), ss 33(1)(b), 35(2), 61I Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A, 44(2) Evidence Act1995 (NSW), s 191
Cases Cited:	Alenezi v R [2023] NSWCCA 283 Bussey v R [2020] NSWCCA 280 Cheungv The Queen (2001) 209 CLR 1; [2001] HCA 67 Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Hili v The Queen (2010) 242 CLR 527; [2010] HCA 45 Kramer v R; R v Kramer [2023] NSWCCA 152 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrockv The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Brannen [2023] NSWDC 356 R v Daley [2010] NSWCCA 223 R v Hines [2020] NSWDC 511 R v Isaacs (1997) 41 NSWLR 374 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Category:	Sentence
Parties:	Rex (Crown) Mateo Lisi Tatola (Offender)
Representation:	Counsel: Ms K James (Crown) Ms E Hile (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Tang Lawyers (Offender)
File Number(s):	2022/00164198
Publication restriction:	Statutory non-publication order regarding the name of the victim or anything that might identify them.