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 2023Date 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: 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 Isaacs (1997) 41 NSWLR 374
Category: Sentence Parties: Rex (Crown)
Mateo Lisi Tatola (Offender)Representation: Counsel:
Solicitors:
Ms K James (Crown)
Ms E Hile (Offender)
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
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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.
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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…
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- Case
- [2023] NSWDC 518
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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