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R v Tolley

R v Tolley

Case [2004] NSWCCA 165 26 May 2004

Sentencing

Crown Appeal

Manifestly Inadequate

Trial Judge Error

Criminal Law

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CITATION: R v Tolley [2004] NSWCCA 165 revised - 07/02/2006

HEARING DATE(S): 12/05/2004

JUDGMENT DATE:
26 May 2004

JUDGMENT OF: Hodgson JA at 1; Levine J at 3; Howie J at 4

DECISION: The appeal is allowed and the sentence imposed by Judge O'Reilly is quashed. The respondent is sentenced to a term of imprisonment made up of a non-parole period of one year to date from 13 August 2003 and expiring on 12 August 2004 the date upon which he is to be released to parole. The conditions of his parole are to include a condition that he places himself under the supervision of the Probation and Parole Service. The balance of the term is to be one year to date from 13 August 2004 and to expire on 12 August 2005.

CATCHWORDS: Criminal Law and Procedure - Sentencing - Crown Appeal - suspended sentence - manifestly inadequate - trial judge erred in failing to take into account seriousness of firearms offences and in having regard to parity with co-offender on Form 1 matter - discussion as to the effects of revocation of bond under s 12.

LEGISLATION CITED: Crimes Act 1900 - s 350
Crimes (Sentencing Procedure) Act 1999 - ss 12, 21A, 37, 44, 45, 46, 47, 49, 50
Sentencing Act - s 99
Criminal Appeal Act 1912 - s 5D
Drug Misuse and Trafficking Act 1985 - s 24(1)
Criminal Procedure Act 1986 - Table 1
Firearms Act 1996 - ss 3, 36(1)

CASES CITED: R v Brady (1998) ABCA 7
R v Finnie (No.2) [2004] NSWCCA 150
R v Hunt [2002] NSWCCA 266
R v Gamgee (2001) 51 NSWLR 707
R v Turkmani [2002] NSWCCA 388
R v Haydon (NSWCCA, unreported, 11 November 1990)
R v Cromarty [2004] NSWCCA 54
R v Thurgar (1999) 51 A Crim R 109
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
R v Hodges (NSWCCA, unreported, 20 August 1997)

PARTIES :
Regina v Stuart William Tolley

FILE NUMBER(S): CCA 60536/03

COUNSEL: D. Arnott - Crown
R.K.M. Rasmussen with D. Rayment - Respondent

SOLICITORS: S, Kavanagh - Crown
S. O'Connor - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1246

LOWER COURT
JUDICIAL OFFICER : O'Reilly DCJ

60536/03

HODGSON JA
LEVINE J
HOWIE J
WEDNESDAY 26 May 2004

R v STUART WILLIAM TOLLEY

Judgment

1 HODGSON JA: I agree with Howie J.

2 I would add that, in my opinion, the consequences of giving effect to a literal interpretation of s 47 of the Crimes (Sentencing Procedure) Act in the case of revocation of a s 12 bond are so anomalous that the following approach is preferable. Upon revocation of a s 12 bond, s 99 requires the Court to apply s 47, and subject to s 47 and any other relevant part of Pt. IV being complied with, the sentence “takes effect”. That means that, for the first time, there is an effectual imposition of…

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 Tolley

Details

AGLC: R v Tolley [2004] NSWCCA 165
Case: [2004] NSWCCA 165
Decision Date: 26 May 2004

CaseChat Overview and Summary

In the case of R v Tolley, the respondent, a 21-year-old man, was convicted by the District Court of possessing a prohibited weapon and possessing a firearm without a licence. The court sentenced Tolley to a two-year suspended sentence with a one-year supervision period. The Crown, dissatisfied with the sentence, appealed to the Court of Appeal. The appeal centred on whether the sentence was manifestly inadequate and whether the trial judge erred in failing to sufficiently consider the seriousness of the firearms offences and in taking into account the parity with Tolley's co-offender when completing the Form 1 matter.

The court considered whether the trial judge erred in assessing the adequacy of the sentence. The Crown argued that the sentence was manifestly inadequate and failed to reflect the seriousness of the firearms offences. The court considered the principles of sentencing in the context of firearms offences and the need for deterrence and denunciation. The court also examined whether the trial judge failed to sufficiently consider the seriousness of the offences and the need for parity with the co-offender when completing the Form 1 matter. The court found that the trial judge did not adequately consider the seriousness of the firearms offences and the need for parity with the co-offender.

The Court of Appeal found that the trial judge erred in assessing the adequacy of the sentence. The court held that the trial judge failed to sufficiently consider the seriousness of the firearms offences and the need for parity with Tolley's co-offender. The court also found that the sentence was manifestly inadequate and did not reflect the need for deterrence and denunciation. The court quashed the sentence and ordered that Tolley be re-sentenced. The court noted that the revocation of the bond under s 12 would not affect the re-sentencing process.

The Court of Appeal quashed Tolley's sentence and ordered that he be re-sentenced. The court emphasised the need for the trial judge to adequately consider the seriousness of firearms offences and the need for parity with co-offenders when completing the Form 1 matter. The court also highlighted the importance of ensuring that the sentence reflects the need for deterrence and denunciation.

Orders