R v Tongue - [2023] NSWDC 175

District Court

New South Wales

Medium Neutral Citation: R v Tongue [2023] NSWDC 175
Hearing dates: 16 March 2023
Date of orders: 03 May 2023
Decision date: 03 May 2023
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 Brenton Michael Tongue is convicted.
2 For the Federal offence, taking into account the matters on the s 16BA schedule and the appropriate discount, I impose a term of imprisonment of 15 months to date from 4 September 2022.
3 Pursuant to s 19AC(1) Crimes Act 1914 (Cth), I order that the offender be released on 3 May 2023, having served 8 months of the sentence, on entering into a recognisance in the sum of $1 to be of good behaviour for 18 months.
4 If the offender fails to comply with the recognisance release order, further action against him may be taken. This may require him to return to court.
5 For the State offences, I impose an aggregate term of imprisonment for the State offences of 2 years and 9 months.
6 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (3 May 2023) and expire on 2 February 2026.

Catchwords:
CRIME – Fraud – make counterfeit money – deal with identification information
CRIME — Drug offences — Supply prohibited drug

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Currency) Act 1981 (Cth)
Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546
Bugmy v The Queen (1990) 169 CLR 525
Deakin v The Queen (1984) 58 ALJR 367
Hili v The Queen (2010) 242 CLR 520
Johnson v The Queen (2004) 78 ALJR 616
Mandranis v R [2021] NSWCCA 97
Power v The Queen (1974) 131 CLR 623
R v El Karhani (1990) 21 NSWLR 370
R v Lamella [2014] NSWCCA 122
R v Olbrich (1999) 199 CLR 270
R v Zamagias [2002] NSWCA 17

Category: Sentence
Parties: Rex (Crown)
Brenton Michael Tongue (Offender)
Representation:
Counsel:
L Cavell (Crown)
M Kiriakos (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Carmody Lawyers (Offender)

File Number(s): 2021/194794
Publication restriction: None

JUDGMENT

Introduction

Brenton Michael Tongue (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence

Offence

Maximum penalty

2

Make counterfeit money, contrary to s 6, Crimes (Currency) Act 1981 (Cth).

14 years imprisonment and/or fine of $186,480

10

Deal with identification information with the intention to commit, or facilitate the commission of, an indictable offence, namely fraud, contrary to s 192J, Crimes Act 1900 (NSW).

10 years imprisonment and/or fine of $110,000

7

(s 166)

Supply a prohibited drug contrary to ss 25(1), Drugs Misuse and Trafficking Act 1985 (NSW).

2 years imprisonment and/or a fine of $11,000

In passing sentence for sequence 2, the offender asks the Court…

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 Tongue

Details

AGLC: R v Tongue [2023] NSWDC 175
Case: [2023] NSWDC 175
Decision Date: 03 May 2023

CaseChat Overview and Summary

In the case of R v Tongue, the appellant, Brenton Michael Tongue, faced charges related to counterfeit money, dealing with identification information, and drug supply. The matter was heard in the Supreme Court of New South Wales. The appellant was charged under the Commonwealth Crimes Act 1914 for offences including making counterfeit money, and dealing with identification information. He was also charged with drug offences under the Drug Misuse and Trafficking Act 1985. The court was required to determine whether the appellant was guilty of the charges and, if so, what sentence should be imposed. This involved assessing the severity of the crimes, the appellant's criminal history, and any mitigating or aggravating factors.

The court addressed the legal issues by first confirming the appellant's guilt on all charges. It then proceeded to consider the appropriate sentence, taking into account the seriousness of the offences, the appellant's criminal history, and the principles of sentencing. The court noted the appellant's previous convictions and the impact of his criminal behaviour on the community. The court also considered the appellant's guilty plea and his cooperation with authorities. After weighing these factors, the court determined an appropriate sentence that balanced the need for punishment, deterrence, and rehabilitation.

The court sentenced the appellant to a term of imprisonment for the federal offence of 15 months, to be served from 4 September 2022. For the state offences, the court imposed an aggregate term of imprisonment of 2 years and 9 months. The court ordered the appellant's release on 3 May 2023, following the completion of 8 months of his sentence, subject to certain conditions. The sentence for the state offences is to be served as an intensive correction order, commencing on 3 May 2023 and expiring on 2 February 2026. The court also noted that failure to comply with the release conditions could result in further legal action.

Orders

Orders of the court

1 Brenton Michael Tongue is convicted.

2 For the Federal offence, taking into account the matters on the s 16BA schedule and the appropriate discount, I impose a term of imprisonment of 15 months to date from 4 September 2022.

3 Pursuant to s 19AC(1) Crimes Act 1914 (Cth), I order that the offender be released on 3 May 2023, having served 8 months of the sentence, on entering into a recognisance in the sum of $1 to be of good behaviour for 18 months.

4 If the offender fails to comply with the recognisance release order, further action against him may be taken. This may require him to return to court.

5 For the State offences, I impose an aggregate term of imprisonment for the State offences of 2 years and 9 months.

6 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (3 May 2023) and expire on 2 February 2026.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v Tongue [2023] NSWDC 175
Hearing dates:	16 March 2023
Date of orders:	03 May 2023
Decision date:	03 May 2023
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 Brenton Michael Tongue is convicted. 2 For the Federal offence, taking into account the matters on the s 16BA schedule and the appropriate discount, I impose a term of imprisonment of 15 months to date from 4 September 2022. 3 Pursuant to s 19AC(1) Crimes Act 1914 (Cth), I order that the offender be released on 3 May 2023, having served 8 months of the sentence, on entering into a recognisance in the sum of $1 to be of good behaviour for 18 months. 4 If the offender fails to comply with the recognisance release order, further action against him may be taken. This may require him to return to court. 5 For the State offences, I impose an aggregate term of imprisonment for the State offences of 2 years and 9 months. 6 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (3 May 2023) and expire on 2 February 2026.
Catchwords:	CRIME – Fraud – make counterfeit money – deal with identification information CRIME — Drug offences — Supply prohibited drug
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Currency) Act 1981 (Cth) Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546 Bugmy v The Queen (1990) 169 CLR 525 Deakin v The Queen (1984) 58 ALJR 367 Hili v The Queen (2010) 242 CLR 520 Johnson v The Queen (2004) 78 ALJR 616 Mandranis v R [2021] NSWCCA 97 Power v The Queen (1974) 131 CLR 623 R v El Karhani (1990) 21 NSWLR 370 R v Lamella [2014] NSWCCA 122 R v Olbrich (1999) 199 CLR 270 R v Zamagias [2002] NSWCA 17
Category:	Sentence
Parties:	Rex (Crown) Brenton Michael Tongue (Offender)
Representation:	Counsel: L Cavell (Crown) M Kiriakos (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Carmody Lawyers (Offender)
File Number(s):	2021/194794
Publication restriction:	None

Sequence	Offence	Maximum penalty
2	Make counterfeit money, contrary to s 6, Crimes (Currency) Act 1981 (Cth).	14 years imprisonment and/or fine of $186,480
10	Deal with identification information with the intention to commit, or facilitate the commission of, an indictable offence, namely fraud, contrary to s 192J, Crimes Act 1900 (NSW).	10 years imprisonment and/or fine of $110,000
7 (s 166)	Supply a prohibited drug contrary to ss 25(1), Drugs Misuse and Trafficking Act 1985 (NSW).	2 years imprisonment and/or a fine of $11,000