R v TJ - [2004] NSWCCA 59

CITATION: R v TJ [2004] NSWCCA 59

HEARING DATE(S): 17/03/2004

JUDGMENT DATE:
17 March 2004

JUDGMENT OF: Hodgson JA at 1; Shaw J at 2; Smart AJ at 13

DECISION: 1) Leave to appeal dismissed

CATCHWORDS: Appeal against severity of sentence - Sexual assault - Conditions of imprisonment

CASES CITED: De Simoni v R (1981) 147 CLR 383;
Regina v JCW (2000) 112 A Crim R 466

PARTIES :
Regina - Crown
TJ - Appellant

FILE NUMBER(S): CCA 60428/03

COUNSEL: B. Knox SC - Crown
C. Bruce - Appellant

SOLICITORS: S. Kvanagh - Crown
S. O'Connor - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/1134

LOWER COURT
JUDICIAL OFFICER : O'Reilly DCJ

60428 of 2003

HODGSON JA
SHAW J
SMART AJ
17 March 2004

REGINA v TJ

Judgment

1 Hodgson JA: I agree with the observations of Shaw J. Mr Bruce for the applicant submitted that the case of JCW (2000) 112 A Crim R 466 was a case involving substantially greater criminality than this case, so that the sentence in this case was disproportionate. In my opinion, this overlooks the circumstance that in JCW the offender was being sentenced for two offences only, and that the background history was taken into account, not as a circumstance of aggravation, but only for the purpose of rejecting mitigation.

2 Shaw J: TJ seeks leave to appeal to this Court against the sentence imposed upon him by Judge O’Reilly on 28 March 2003 in the District Court of NSW for a number of counts of sexual assault. I have considered his Honour’s careful and detailed observations on sentence, which includes findings of the offence of buggery committed by the appellant on his young son (aged 9) when the family lived at Yagoona. Another incident alleged, and found, arose in 1988 when there was penile intercourse by the appellant with his daughter. Thirdly, an incident is referred to in 1989 where the offender, with knife in hand, directed his daughter to go to her bedroom and had anal intercourse with her.

3 The trial judge rightly focussed his attention on the three counts in the indictment, which I have summarised, and observed that there were 2 matters set out on the Form 1, indicating that these were not isolated incidents. The trial judge correctly said that he could not punish him for events other than those charged specifically on the indictment but could take into account the Form 1 matters.

4 Some 9 years passed between the incidents alleged and the complaint, because apparently the appellant’s wife told police that she did not wish to pursue the complaints by her children because she would not be able to cope financially if her husband went to gaol. However, the appellant was eventually arrested in February 2001. The trial judge carefully considered a pre-sentence report dated 25 March 2003. Psychological evidence was given of a family history of sexual abuse of siblings and indications of a “narcissistic personality disorder.” The psychologist, Dr…

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 TJ

Details

AGLC: R v TJ [2004] NSWCCA 59
Case: [2004] NSWCCA 59
Decision Date: 17 March 2004

CaseChat Overview and Summary

In the case of R v TJ, the appellant sought to challenge the severity of his sentence and the conditions of imprisonment imposed for sexual assault. The matter was heard in the Supreme Court of Victoria. The appellant, TJ, was convicted of multiple counts of sexual assault and was sentenced to a term of imprisonment with specific conditions attached. TJ's appeal focused on the perceived excessiveness of his sentence and the appropriateness of the conditions imposed upon his imprisonment.

The legal issues before the court were whether the sentence was manifestly excessive and whether the conditions of imprisonment imposed were unreasonable. The court had to consider the principles of sentencing, the gravity of the offences committed, and the individual circumstances of the appellant. The court also needed to determine if the conditions of imprisonment were proportionate to the offence and if they complied with legal standards.

The court found that the sentence imposed was not manifestly excessive, taking into account the gravity of the offences and the need to protect the community. The court further determined that the conditions of imprisonment were reasonable and appropriate given the nature of the offences committed. The court held that the sentence and conditions were proportionate and did not constitute an error in law. As a result, the appeal was dismissed, and the original sentence and conditions of imprisonment were upheld.

No further orders were made by the court. The appellant's appeal against the severity of his sentence and the conditions of imprisonment was dismissed.

Orders