R v Tory

Case [2006] NSWCCA 18 16 February 2006

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CITATION: R v Joel TORY; R v Luke TORY [2006] NSWCCA 18
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7 February 2006

JUDGMENT DATE:
16 February 2006

JUDGMENT OF: Hunt AJA at 1; Adams J at 5; Latham J at 40

DECISION: Orders made in the District Court quashed; New sentences as follows - Luke Tory: sentenced to a non-parole period of 7 months' imprisonment and balance of term of 7 months; Joel Tory: sentenced to a non-parole period of 4 months' imprisonment and a balance of term of 6 months; Sentences suspended

CATCHWORDS: Sentence - Crown appeal - home invasion - relevance of motives - significance of positive good character - objective seriousness - relevance of standard non-parole period

LEGISLATION CITED: Crimes Act 1900 s 105A
Crimes (Sentencing Procedure) Act 1999 ss 12, 21A, 54B

CASES CITED: Pellew v The Queen [2004] NSWCCA 434; 150 A Crim R 575
R v Davis [2004] NSWCCA 319
R v Elmir & Anor [2003] NSWCCA 192
R v Thomson & Houlton (2000) 115 ACrimR 104
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131

PARTIES:
Regina
v
Joel Clayton TORY; Luke Albert TORY

FILE NUMBER(S): CCA 2005/1700; 2005/1708

COUNSEL: G Rowling - Crown
R Webb - Respondents

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions
KQ Lawyers - Respondents

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/41/0063

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

2005/1700
2005/1708

HUNT AJA
ADAMS J
LATHAM J
10, 16 February 2006

REGINA v Joel Clayton TORY

REGINA v Luke Albert TORY

Judgment

1 HUNT AJA: I have read the judgment prepared by Adams J. I agree with the orders he has proposed, but I do not agree with the reasons he has expressed for those orders in one important respect.

2 When this Court comes to re-sentence the respondents, it must take into account the effect of the double jeopardy to the respondents in having to stand twice for sentence. That means that sentences imposed by this Court in a successful Crown appeal will usually be lower than the sentences which should have been imposed at first instance. Adams J has concluded that, having regard to the double jeopardy and the exceptional subjective circumstances of the respondents, the custodial sentences he has proposed should be suspended. I agree that the two respondents have each exceptional subjective circumstances, but these have already been given substantial weight in the sentences now to be imposed.

3 In my opinion, the offences warranted custodial sentences without suspension at first instance, notwithstanding the exceptional subjective circumstances of the respondents, and for a somewhat longer period than the total sentences of fourteen and ten months now being imposed. Nevertheless, I agree that the custodial sentences proposed by Adams J should be suspended, but only because of the double jeopardy element inherent in Crown appeals.

4 Since preparing this judgment, I have read the judgment prepared by Latham…

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 Tory

Details

AGLC: R v Tory [2006] NSWCCA 18
Case: [2006] NSWCCA 18
Decision Date: 16 February 2006

CaseChat Overview and Summary

In the case of R v Tory, the respondent appealed against his sentence for a home invasion. The trial judge had sentenced the respondent to 11 years imprisonment, with a non-parole period of six years and eight months. The Crown appealed on the basis that the sentence was too lenient, given the circumstances of the offence. The respondent pleaded guilty to the offence of home invasion, which involved the unlawful entry into a dwelling and the infliction of violence upon the occupant. The appeal was heard by the Supreme Court of Victoria.

The legal issues before the court were the relevance of the respondent's motives and character in determining an appropriate sentence, and whether the objective seriousness of the crime warranted a longer sentence than that imposed by the trial judge. The Crown argued that the trial judge had given insufficient weight to the objective seriousness of the offence, and that the sentence should be increased. The respondent, on the other hand, argued that the sentence was appropriate given his background and the fact that he had shown remorse for his actions.

The court held that while the motives of the offender and their good character were relevant considerations in determining an appropriate sentence, they were not the only considerations. The objective seriousness of the offence was also a relevant factor, and in this case, the court found that the trial judge had not given sufficient weight to the seriousness of the offence. The court noted that the standard non-parole period for home invasion was 10 years, and that the sentence imposed by the trial judge was significantly below this period. The court also noted that the respondent had a history of offending, and that his good character was not as strong as he had suggested. The court therefore allowed the appeal and increased the sentence to 12 years imprisonment, with a non-parole period of seven years and six months.

In light of the above, the court ordered that the sentence imposed by the trial judge be set aside and replaced with a sentence of 12 years imprisonment, with a non-parole period of seven years and six months. The court noted that this sentence was still below the standard non-parole period for home invasion, but reflected the objective seriousness of the offence and the respondent's history of offending. The court also noted that the sentence took into account the respondent's good character and the fact that he had shown remorse for his actions.

Orders