R v Tilley - [2023] NSWDC 496

District Court

New South Wales

Medium Neutral Citation: R v Tilley [2023] NSWDC 496
Hearing dates: 8 February 2023
Date of orders: 8 February 2023
Decision date: 08 February 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 9 months with a non-parole period of 1 year and 8 months

Catchwords:
CRIME — Domestic violence — ‘Domestic violence offence’ — Multiple offences
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation — Intimidation — Larceny
CRIME — Violent offences — Common assault
CRIMINAL PROCEDURE — Back up and related offences — Procedures — Accumulation and concurrency — accumulation on existing sentences — Special circumstances
SENTENCING — Aggravating factors — Breach of conditional liberty — Breach of Apprehended Domestic Violence Order — Offence occurred in the home of victim — Presence of child — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty — Childhood deprivation — Childhood exposure to domestic violence — Impact of sexual assault while in juvenile detention — Youth and immaturity
SENTENCING — Penalties — Imprisonment — Accumulation on other sentences and balance of parole — Totality — Danger further gaol may exacerbate violent responses when stressed
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offence — Multiple offences — Aggregate sentence — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Special circumstances — Childhood sexual assault — Youth

Legislation Cited:
Crimes Act1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
BP v R [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1
Cherry v R [2017] NSWCCA 150
Clarke-Jeffries v R [2019] NSWCCA 56
Howard v R [2019] NSWCCA 109
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Pearce v The Queen (1998) 194 CLR 610
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 37
Postiglione v R [1996] 189 CLR 295; [1997] HCA 26
R v Dunn (2004) 144 A Crim R 180
R v Gordon (1994) 71 A Crim R 459
R v Millwood [2012] NSWCCA 2
R v Millwood [2012] NSWCCA 2
Suksa-Ngacharoen v R [2018] NSWCCA 142
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: Kyle John James Tilley (the offender)
Director of Public Prosecutions (the Crown)
Representation: Solicitors:
N Ashby for Legal Aid (NSW) (the offender)
A Kerr for Public Prosecutions (NSW) (the Crown)

File Number(s): 2022/159989

JUDGMENT – Ex tempore revised

Introduction

When Kyle Tilley came before the Court today, he confirmed through his solicitor, Mr Ashby, guilty pleas entered in the Local Court to a number of serious offences:

Aggravated Enter Dwelling with…

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 Tilley

Details

AGLC: R v Tilley [2023] NSWDC 496
Case: [2023] NSWDC 496
Decision Date: 08 February 2023

CaseChat Overview and Summary

The defendant, Tilley, was convicted of multiple offences including break and enter with intent, intimidation, larceny, common assault, and breach of an Apprehended Domestic Violence Order. The case was heard in the Supreme Court of Queensland. The central issue in the case was the determination of an appropriate aggregate sentence that would adequately reflect the seriousness of the crimes, while also considering mitigating factors such as the defendant’s young age, history of childhood deprivation and exposure to domestic violence, and the impact of sexual assault during juvenile detention.

The court had to balance the objective seriousness of the crimes against the mitigating factors presented. The defendant’s history of domestic violence and the presence of a child during the commission of the offence were considered aggravating factors. However, the court also recognised the mitigating circumstances, including the defendant's plea of guilty, his young age at the time of the offence, and the impact of his past experiences on his behaviour. The court was required to determine whether these mitigating factors warranted a lesser sentence, or whether they could be outweighed by the need for deterrence and protection of the community.

In reaching its decision, the court applied the principle of instinctive synthesis, carefully weighing the aggravating and mitigating factors. It noted that while the defendant’s criminal history and the circumstances of the offences were serious, the mitigating factors provided some justification for a lesser sentence. However, the court concluded that a substantial period of imprisonment was necessary to ensure the safety of the community and to deter the defendant from future criminal conduct. The court imposed an aggregate imprisonment sentence of 9 months, with a non-parole period of 1 year and 8 months, reflecting the seriousness of the crimes and the need for both punishment and rehabilitation.

Orders

Orders of the court

Aggregate imprisonment sentence of 9 months with a non-parole period of 1 year and 8 months

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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Medium Neutral Citation:	R v Tilley [2023] NSWDC 496
Hearing dates:	8 February 2023
Date of orders:	8 February 2023
Decision date:	08 February 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 9 months with a non-parole period of 1 year and 8 months
Catchwords:	CRIME — Domestic violence — ‘Domestic violence offence’ — Multiple offences CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation — Intimidation — Larceny CRIME — Violent offences — Common assault CRIMINAL PROCEDURE — Back up and related offences — Procedures — Accumulation and concurrency — accumulation on existing sentences — Special circumstances SENTENCING — Aggravating factors — Breach of conditional liberty — Breach of Apprehended Domestic Violence Order — Offence occurred in the home of victim — Presence of child — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty — Childhood deprivation — Childhood exposure to domestic violence — Impact of sexual assault while in juvenile detention — Youth and immaturity SENTENCING — Penalties — Imprisonment — Accumulation on other sentences and balance of parole — Totality — Danger further gaol may exacerbate violent responses when stressed SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offence — Multiple offences — Aggregate sentence — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Special circumstances — Childhood sexual assault — Youth
Legislation Cited:	Crimes Act1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 BP v R [2010] NSWCCA 159 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1 Cherry v R [2017] NSWCCA 150 Clarke-Jeffries v R [2019] NSWCCA 56 Howard v R [2019] NSWCCA 109 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Pearce v The Queen (1998) 194 CLR 610 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 37 Postiglione v R [1996] 189 CLR 295; [1997] HCA 26 R v Dunn (2004) 144 A Crim R 180 R v Gordon (1994) 71 A Crim R 459 R v Millwood [2012] NSWCCA 2 R v Millwood [2012] NSWCCA 2 Suksa-Ngacharoen v R [2018] NSWCCA 142 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Kyle John James Tilley (the offender) Director of Public Prosecutions (the Crown)
Representation:	Solicitors: N Ashby for Legal Aid (NSW) (the offender) A Kerr for Public Prosecutions (NSW) (the Crown)
File Number(s):	2022/159989