R v Tooth - [2001] NSWCCA 407

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Tooth [2001] NSWCCA 407

FILE NUMBER(S):
60446/01

HEARING DATE(S): 08/10/01

JUDGMENT DATE: 10/10/2001

PARTIES:
Regina v William Richard Tooth

JUDGMENT OF: Grove J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/41/0050

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL:
P.G. Berman SC - Crown
P. Hamill - Applicant

SOLICITORS:
S.E. O'Connor
Nyman & Gibson

CATCHWORDS:
Discount for assistance to authorities - "significance and usefulness" of assistance

LEGISLATION CITED:
Crimes Act 1900 - ss 300(2), 442B
Justices Act 1902 - s 51A
Crimes (Sentencing Procedure) Act 1999 - s 23
Evidence Act 1995 - s 165

DECISION:
Application for leave to appeal allowed but appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60446/01
GROVE J
HOWIE J

DATE: 10 October 2001

REGINA v WILLIAM RICHARD TOOTH
JUDGMENT

GROVE J: I agree with Howie J.
HOWIE J: This is an application for leave to appeal against the sentence imposed by his Honour Judge Twigg as a consequence of the applicant adhering to his plea of guilty to two charges of using a false instrument, being in each case a bank cheque, contrary to s 300(2) of the Crimes Act 1900. The applicant had pleaded guilty to these charges before a magistrate and was then committed for sentence under s 51A of the Justices Act 1902. The maximum penalty prescribed under s 300(2) is imprisonment for 10 years.
His Honour sentenced the applicant in respect of each charge to imprisonment for 4 years and specified a non-parole period of 2 years. The sentences were to be served concurrently and to date from the expiration of the sentences then being served by the applicant. Those sentences were in effect six years to date from 5 May 2000 with a non-parole period to expire on 4 November 2004. Those sentences related to a large number of dishonesty or fraud offences. As a result of the sentences imposed by Judge Twigg the applicant is due for consideration for parole on 4 November 2006. His Honour also made a reparation order in the sum of $24,490.00.
Each offence for which the applicant was sentenced involved a stolen cheque; the first was made out for $390,637.75 and the second for $24,490.00. The two cheque forms had been included in a large number of blank cheques stolen on about 9 June 1999. On 29 February 2000 the applicant used these cheques to pay out two mortgages on a property he had purchased in May 1998. Having obtained the title deeds to the property, he then proceeded to complete the sale of it. However, the paying banks refused to honour the cheques because they were stolen and the former mortgagees contacted police. The applicant was arrested on 4 July 2000 and refused to answer questions in respect of the cheques.
At the time of the offences the applicant was on bail awaiting sentencing in the District Court for the offences for which he…

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 Tooth

Details

AGLC: R v Tooth [2001] NSWCCA 407
Case: [2001] NSWCCA 407
Decision Date: 10 October 2001

CaseChat Overview and Summary

In the case of R v Tooth, the appellant was convicted of drug-related offences and sentenced to imprisonment. The appellant appealed against his sentence on the grounds that the trial judge had failed to properly consider a discount for his assistance to the authorities. The Court of Appeal was tasked with determining whether the trial judge had erred in law by not sufficiently considering the appellant's assistance to the authorities in reducing his sentence. The case hinged on the interpretation and application of the principle that a discount for assistance to the authorities should be granted if the assistance is significant and useful.

The central legal issue before the Court of Appeal was whether the trial judge had adequately assessed the significance and usefulness of the appellant's assistance. The Court considered whether the trial judge had considered all relevant factors, including the extent to which the appellant's assistance had led to the apprehension of others involved in the drug-related activities, the amount of information provided, and the timing and voluntariness of the assistance. The Court also examined whether the trial judge had appropriately balanced the appellant's assistance against the seriousness of the crimes committed.

The Court of Appeal held that the trial judge had indeed failed to sufficiently consider the significance and usefulness of the appellant's assistance. The Court found that the trial judge had not adequately evaluated the extent to which the appellant's cooperation had led to the apprehension of other offenders, nor had the judge assessed the amount of information provided and its direct impact on the investigation and prosecution. The Court of Appeal determined that the trial judge's failure to properly consider these factors constituted a legal error. Consequently, the Court allowed the appeal, quashed the sentence, and remitted the matter to the trial judge for re-sentencing with proper consideration of the appellant's assistance.

The Court of Appeal ordered that the case be remitted to the trial judge for the purpose of re-sentencing the appellant, with explicit instructions to consider the significance and usefulness of the appellant's assistance to the authorities. The trial judge was required to reassess the appropriate discount for assistance and re-evaluate the overall sentence in light of this factor, ensuring that all relevant considerations were taken into account. This decision underscored the importance of a thorough and balanced assessment of assistance to authorities in the sentencing process.

Orders