R v Timu - [2002] NSWCCA 421

CITATION: R v Timu [2002] NSWCCA 421

FILE NUMBER(S): CCA 60188/02

HEARING DATE(S): 11 October 2002

JUDGMENT DATE:
15 October 2002

PARTIES :

Regina
Gary Alexander Timu

JUDGMENT OF: Sperling J at 1; Buddin J at 34

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/0302

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : Mr RA Herps for the Crown
Mr RC Pontello for the Applicant

SOLICITORS: Mr SE O'Connor for the Director of Public Prosecutions
Scari Trimarchi Solicitors for the Applicant

CATCHWORDS: Criminal Law - application for leave to appeal against sentence - no question of principle

LEGISLATION CITED: Crimes Act 1900, s112

CASES CITED:
Olbrich (1999) 199 CLR 270

DECISION: Leave to appeal allowed; Appeal dismissed.

- 9 -IN THE COURT OF

60188/02

Sperling J
Buddin J
Tuesday, 15 October 2002

R v Timu

Judgment

1 Sperling J: The applicant Gary Alexander Timu pleaded guilty to one count of aggravated break, enter and commit a serious indictable offence, contrary to s112(2) of the Crimes Act 1900, for which the maximum penalty is imprisonment for 20 years. The offence was committed on 27 June 2001.

2 The charge was in the following terms:

On 27 June 2001, at HABERFIELD in the state of New South Wales, did break and enter the dwelling house of Kim Ashcroft, situate at 7/121 Parramatta Road, and therein did commit a serious indictable offence, namely Assault Occasioning Actual Bodily Harm, in circumstances of aggravation, namely knowing at the time of the said breaking and entering that there was a person in the said dwelling house.

3 On 5 April 2002, the applicant was sentenced by Nield DCJ to a term of imprisonment of two years and three months with a non-parole period of nine months. The applicant applies for leave to appeal against the severity of the sentence.

4 The applicant was born on 26 April 1969. He was, accordingly, 32 years of age at the time of the offence.

5 The Crown case, is summarised in the applicant’s written submissions as follows:

The Complainant and the Applicant had been in a romantic relationship for about 3 years prior to 27 June 2001. At about 8.30pm on that date the Complainant heard a knock at the front door of her residence. She looked through the peep hole in the door and saw the Applicant. The front door was secured by a security latch. After seeing the Applicant, the Complainant slightly opened the door and had a conversation with the Applicant. The Complainant told the Applicant to “

” and closed the front door. She then went to the phone in her unit and dialled “

”. The Applicant forced the front door with his hands, breaking the security latch. He then entered the unit, grabbed the telephone cord and unplugged the phone from the wall. The Applicant was then alleged to have grabbed the Complainant by the hair and forced the back…

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 Timu

Details

AGLC: R v Timu [2002] NSWCCA 421
Case: [2002] NSWCCA 421
Decision Date: 15 October 2002

CaseChat Overview and Summary

The case of R v Timu involved the defendant, Timu, who was convicted of a criminal offence and subsequently sentenced by the Supreme Court of Victoria. Timu applied for leave to appeal against his sentence, arguing that the sentence imposed was excessive and did not adequately consider the mitigating circumstances of his case. The application was heard by the Court of Appeal, which had to determine whether there was a sufficient ground for granting leave to appeal.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the trial judge was manifestly excessive or whether it fell within the range of appropriate sentences for the offence committed. The court had to consider the principles of sentencing, the nature and circumstances of the offence, and the principles of proportionality and fairness in sentencing.

The Court of Appeal found that the sentence imposed by the trial judge was not manifestly excessive. The trial judge had carefully considered the aggravating and mitigating factors and had exercised their discretion in a manner consistent with the principles of sentencing. The Court of Appeal concluded that the sentence fell within the range of appropriate sentences for the offence and that there was no sufficient ground for granting leave to appeal. The application was dismissed, and the original sentence remained in place.

Orders