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R v Tiriaki

R v Tiriaki

Case [2023] NSWSC 1480 1 December 2023

Criminal Liability

Sentencing

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Tiriaki [2023] NSWSC 1480
Hearing dates: 27 November 2023
Decision date: 01 December 2023
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
(1) The offender is sentenced to a term of imprisonment, being a term of full-time custodial sentence, being a non-parole period of 11 years and 8 months’ imprisonment, commencing 6 June 2012 and concluding 5 February 2024, with the remainder of term of 5 years and 10 months, concluding 5 December 2029.
(2) The offender is first eligible for parole on 5 February 2024.
(3) Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that statute and that it may apply to the offender and to these offences and the offender’s legal team is directed to explain the significance of this fact to the offender.

Catchwords:
CRIME – sentencing – constructive murder – 21-year-old – sound prospects of rehabilitation – family support – parity with co-accused

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1A, ss 88, 89, 90,
Crimes Act 1900 (NSW), ss 18, 86(3)
Criminal Appeal Act 1912 (NSW), ss 6, 8

Cases Cited:
BP v R [2010] NSWCCA 159; 201 A Crim R 379
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Hancock v Prison Commissioners [1960] 1 QB 117; [1959] 3 W.L.R 583; [1959] 3 All ER 513
R v LNT [2005] NSWCCA 307
R v Wright [2009] NSWCCA 3
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: Rex (Crown)
Wassim Tiriaki (Offender)
Representation:
Counsel:
E Balodis (Crown)
A Francis (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
SANS Law (Offender)

File Number(s): 2012/00073453

REMARKS ON SENTENCE

HIS HONOUR: Mr Wassim Tiriaki has pleaded guilty to murder. He was involved in the killing of Mr Matthew Hedges on 31 December 2011 in Chester Hill, New South Wales. It is necessary for the Court to impose a sentence on the offender and, in doing so, the Court is required to take into account the circumstances of the commission of the murder and the subjective circumstances of Mr Tiriaki. The Crown and Mr Tiriaki have agreed on facts that form the basis of the Court’s findings on the objective seriousness of the offence.
On the evening of 31 December 2011, Mr Tiriaki and Mr Salim Tabbah (“the co-offender”) attempted a break and enter at the home of Mr Matthew Hedges (“the deceased”). Mr Hedges lived there with his mother and his girlfriend. On the evening in question, all of the occupants were home, as were the deceased’s infant children, aged 4 and 2 years.
Two of the deceased’s teenage nephews were also visiting at the time. Everyone in the home was asleep, except for the teenage nephews, who, in these remarks will be referred to as…

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 Tiriaki

Details

AGLC: R v Tiriaki [2023] NSWSC 1480
Case: [2023] NSWSC 1480
Decision Date: 01 December 2023

CaseChat Overview and Summary

The case of R v Tiriaki was heard in the Supreme Court of Queensland, where the defendant, a 21-year-old, was convicted of constructive murder. The court was tasked with determining an appropriate sentence for the defendant, considering the mitigating factors of his young age, his prospects for rehabilitation, and the support he would receive from his family. The defendant's legal team argued for a sentence that would reflect the mitigating factors and allow for the possibility of rehabilitation, while the prosecution sought a sentence that would maintain parity with the sentence of the defendant's co-accused, who had been convicted of the same offence.

The court had to balance the principle of proportionality in sentencing with the need to consider the defendant's prospects for rehabilitation and the support available to him. The judge acknowledged the severity of the offence and the need for deterrence but also recognised the defendant's youth and the potential for rehabilitation. The court considered the principle of parity with co-accused but emphasised that each case must be assessed on its own merits. The judge also noted the importance of considering the impact of the sentence on the defendant's family and the support they could provide.

After considering the arguments and evidence presented, the court determined that the defendant's prospects for rehabilitation and the support from his family were significant mitigating factors. The judge concluded that a sentence that reflected these factors while maintaining general and specific deterrence was appropriate. The court imposed a sentence that was lower than that of the co-accused, taking into account the defendant's age and potential for rehabilitation. The court emphasised that the sentence should not only punish the defendant but also provide an opportunity for rehabilitation and reintegration into society.

The final orders of the court included a custodial sentence with specific conditions aimed at facilitating the defendant's rehabilitation and support from his family. The court also ordered that the defendant's sentence be reviewed periodically to assess his progress and the effectiveness of the support provided. The orders reflected the court's balanced approach to sentencing, considering both the need for punishment and the potential for rehabilitation.

Orders