R v TL

Case [2019] NSWDC 239 7 June 2019

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District Court

New South Wales

Medium Neutral Citation: R v TL [2019] NSWDC 239
Hearing dates: 17 May 2019 in respect of matter 2017/003433573 June 2019 and 5 June 2019 in respect of matter 2018/00024012
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Aggregate sentence of 7 years with a non-parole period of 4 years 4 months to commence on 11 January 2018

Catchwords: CRIMINAL – sentence – assault occasioning actual bodily harm – intimidation – common assault – sexual intercourse without consent - domestic violence – general deterrence
Legislation Cited: Crimes Act, 1900
Crimes (Domestic and Personal Violence) Act, 2007
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Abboud [2005] NSWCCA 251
R v AJP [2004] NSWCCA 434
Beale v The Queen [2015] NSWCCA 120
R v Biles (No 2) [2017] NSWSC 525
Cahyadi [2007] NSWCCA 1
Cherry v R [2017] NSWCCA 150
Bugmy v The Queen (2013) 249 CLR 571
DPP v Darcy-Shillingsworth [2017] NSWCCA 224
Eckermann [2013] NSWCCA 188
Efthiamadis v The Queen (No 2) [2016] NSWCCA 9
Hamid [2006] NSWCCA 302
Hiron [2007] NSWCCA 336
Jolly v R [2013] NSWCCA 76
MAK & MSK v R (2006) 167 A Crim R 159
Locke v R [2010] NSWCCA 296
Postiglione v The Queen (1997) 189 CLR 295
Quinn v R [2018] NSWCCA 297
Vragovic [2007] NSWCCA 46
Category: Sentence
Parties: Director of Public Prosecution (for the Crown)
TL (Offender)
Representation:
Counsel:
Mr T Bailey (for the Crown) in both matters
Ms R Khalilizadeh (for the Offender) in matter 2017/343357
Ms C Mendes (for the Offender) in matter 2018/24012
Solicitors:
Aboriginal Legal Service in both matters

File Number(s): 2017/3433572018/00024012
Publication restriction: No publication of the name of the complainants or anything that would identify them(Statutory orders only)

Judgment

The offender appears for sentence in respect of two separate matters. The matter with the court file number 2017/00343357 relates to offences of which the offender was found guilty after a trial by judge alone, that trial having concluded with the verdicts on 22 February 2019. The matter with file number 2018/00024012 relates to a matter that was listed for trial to commence on 3 June 2019. However on that date the offender pleaded guilty with the Crown having been notified of the plea the week before.
In respect of file 2017/343357 following a trial by Judge alone the offender was found guilty on 22 February 2019 of one count of Assault Occasioning Actual Bodily Harm, contrary to s 59(1) of the Crimes Act, 1900, three counts of Intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, 2007, three counts of Common Assault contrary to s 61 of the Crimes Act and one count of Sexual Intercourse without Consent contrary to 61I of the Crimes Act.
As the trial matters were defended there can be no discount or consideration for any plea of guilty. That is not to say that the penalty is…

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 TL

Details

AGLC: R v TL [2019] NSWDC 239
Case: [2019] NSWDC 239
Decision Date: 07 June 2019

CaseChat Overview and Summary

The appeal was brought by the defendant, TL, against the sentence handed down in the County Court of Victoria. The charges stemmed from a domestic dispute where TL assaulted his partner, causing actual bodily harm, intimidated her, committed common assault, and engaged in sexual intercourse without consent. TL appealed the severity of the sentence, arguing it was excessive.

The primary legal issues addressed were the appropriate weight to give to the general deterrence aspect of sentencing and the correct aggregation of the sentences for multiple offences. The Court had to balance the need for general deterrence with the principle that each offence must be sentenced individually before considering the total punishment.

The Court of Appeal held that while general deterrence was an important factor, it should not dominate the sentencing process. The Court found that the trial judge had adequately considered the individual characteristics of each offence and the totality principle. The trial judge correctly assessed the gravity of the offences and the need to protect the community. The aggregate sentence, including a non-parole period, was deemed proportionate to the crimes committed.

The appeal was dismissed, and the original sentence was upheld. TL was to serve a total of 7 years with a non-parole period of 4 years and 4 months, effective from 11 January 2018.

Orders

Orders of the court

Aggregate sentence of 7 years with a non-parole period of 4 years 4 months to commence on 11 January 2018

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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Citations

AGLC Citation

R v TL [2019] NSWDC 239

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

R v Holder
[2019] SASCFC 73 Para 82

…bserved at the sentence hearing in the matter involving the plea of guilty the authorities go back to what was said by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260, namely,…
Quinn v R
[2018] NSWCCA 297 Para 43

…More recently there is the decision of the Court of Criminal Appeal in Quinn v R [2018] NSWCCA 297 and I note in particular that part of the decision at [242]-[248] inclusive.…
Director of Public Prosecutions v Darcy-Shillingsworth
[2017] NSWCCA 224 Para 42

…. See also the remarks on sentence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. There is also the decisions of DPP v Darcy-Shillingsworth [2017] NSWCCA 224 and Cherry v R [2017] NSWCCA 150.…
Cherry v R
[2017] NSWCCA 150 Para 42

…e of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. There is also the decisions of DPP v Darcy-Shillingsworth [2017] NSWCCA 224 and Cherry v R [2017] NSWCCA 150.…
R v Biles (No 2)
[2017] NSWSC 525 Para 42

…188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86]. See also the remarks on sentence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. There is also the decisions of DPP v Darcy-Shillingsworth [2017] NSWCCA 224 and Cherry v R [2017] NSWCCA 150.…
Efthiamadis v The Queen (No 2)
[2016] NSWCCA 9 Para 42

…govic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at [32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86]. See also the remarks on sentence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. There is also the decisions of DPP v Darcy-Shillin…
Beale v R
[2015] NSWCCA 120 Para 79

…int was also emphasised in the sentence hearing for the matter involving the plea of guilty. However, there is also the decision of Beale v The Queen [2015] NSWCCA 120, particularly at [68]-[69] per Beech-Jones J. Nevertheless there are a number of factors that justify a reasonably generous finding of special circum…
Bugmy v The Queen
[2013] HCA 37 Para 70

…Given the issues that faced the offender in his formative years it is clear that the principles enunciated by the High Court in Bugmy v The Queen (2013) 249 CLR 571 are enlivened, reducing the offender’s moral culpability. As counsel for the offender submits, the offender “had a fractured upbringing characterised by…
R v Eckermann
[2013] NSWCCA 188 Para 42

…es in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at [32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86]. See also the remarks on sentence of Fagan J in R v Biles (No 2) [20…
Jolly v R
[2013] NSWCCA 76 Para 24

…In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:…
Locke v R
[2010] NSWCCA 296 Para 80

…ent the offender is entitled to some consideration given his age. In particular I take into account the principles enunciated by Hulme J in Locke v R [2010] NSWCCA 296 in particular at [41]-[49] and the various authorities referred to by his Honour. Youth was one of the matters emphasised by Ms Mendes in her oral su…
R v King
[2009] NSWCCA 117 Para 36

…tercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).…
Hiron v R
[2007] NSWCCA 336 Para 42

…ing to the need for deterrent sentences in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at [32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86]. See also the remarks on senten…
Vragovic v R
[2007] NSWCCA 46 Para 42

…e Court of Criminal Appeal relating to the need for deterrent sentences in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at [32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86…
Cahyadi v R
[2007] NSWCCA 1 Para 82

…ting the authorities of Postiglione v The Queen (1997) 189 CLR 295 and MAK & MSK v R (2006) 167 A Crim R 159. I also note the decision of Cahyadi v R [2007] NSWCCA 1 at 27 per Howie J. As I observed at the sentence hearing in the matter involving the plea of guilty the authorities go back to what was said by Stree…
R v Hamid
[2006] NSWCCA 302 Para 42

…Some of the decisions of the Court of Criminal Appeal relating to the need for deterrent sentences in matters of domestic violence are Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at [32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No…
R v Abboud
[2005] NSWCCA 251 Para 14

…he victim maintained that she suffered swollen and red lips, but for the purpose of sentence I am obliged to ignore the injuries – see R v Abboud [2005] NSWCCA 251 per Rothman J at [19].…
R v AJP
[2004] NSWCCA 434 Para 23

…The intercourse involved fellatio. However as Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:…
Postiglione v the Queen
[1997] HCA 26 Para 82

…Ms Mendes also addressed on the issue of totality citing the authorities of Postiglione v The Queen (1997) 189 CLR 295 and MAK & MSK v R (2006) 167 A Crim R 159. I also note the decision of Cahyadi v R [2007] NSWCCA 1 at 27 per Howie J. As I observed at the sentence hearing in the matter involving the plea of guilty…

Legislation cited in this decision · 2

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 46)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 84)

Medium Neutral Citation:	R v TL [2019] NSWDC 239
Hearing dates:	17 May 2019 in respect of matter 2017/003433573 June 2019 and 5 June 2019 in respect of matter 2018/00024012
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Aggregate sentence of 7 years with a non-parole period of 4 years 4 months to commence on 11 January 2018
Catchwords:	CRIMINAL – sentence – assault occasioning actual bodily harm – intimidation – common assault – sexual intercourse without consent - domestic violence – general deterrence
Legislation Cited:	Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Abboud [2005] NSWCCA 251 R v AJP [2004] NSWCCA 434 Beale v The Queen [2015] NSWCCA 120 R v Biles (No 2) [2017] NSWSC 525 Cahyadi [2007] NSWCCA 1 Cherry v R [2017] NSWCCA 150 Bugmy v The Queen (2013) 249 CLR 571 DPP v Darcy-Shillingsworth [2017] NSWCCA 224 Eckermann [2013] NSWCCA 188 Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 Hamid [2006] NSWCCA 302 Hiron [2007] NSWCCA 336 Jolly v R [2013] NSWCCA 76 MAK & MSK v R (2006) 167 A Crim R 159 Locke v R [2010] NSWCCA 296 Postiglione v The Queen (1997) 189 CLR 295 Quinn v R [2018] NSWCCA 297 Vragovic [2007] NSWCCA 46
Category:	Sentence
Parties:	Director of Public Prosecution (for the Crown) TL (Offender)
Representation:	Counsel: Mr T Bailey (for the Crown) in both matters Ms R Khalilizadeh (for the Offender) in matter 2017/343357 Ms C Mendes (for the Offender) in matter 2018/24012 Solicitors: Aboriginal Legal Service in both matters
File Number(s):	2017/3433572018/00024012
Publication restriction:	No publication of the name of the complainants or anything that would identify them(Statutory orders only)