R v TR - [2004] NSWCCA 187

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v TR [2004] NSWCCA 187

FILE NUMBER(S):
60065/04

HEARING DATE(S): 11 May 2004

JUDGMENT DATE: 01/07/2004

PARTIES:
Regina (Respondent)

TR (Applicant)

JUDGMENT OF: Dunford J Adams J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0027

LOWER COURT JUDICIAL OFFICER: Ducker DCJ

COUNSEL:
B Knox SC (Respondent)
A Francis (Applicant)

SOLICITORS:
S Kavanagh (Respondent)
S O'Connor (Applicant)

CATCHWORDS:
Sentence appeal
maliciously inflicting grievous bodily harm
applicant part Pacific Islander
provocation by racist remarks
inappropriate questioning by sentencing Judge
minor
effect of delay
parity of sentencing

LEGISLATION CITED:
Crimes Act 1900 ss33, 35(1)(b)
Crimes (Sentencing Procedure) Act 1999 s44
Crimes (Sentencing Procedure) Amendment (Standard Minumum Sentencing) Act 2002
Criminal Appeal Act 1912 s6(3)

DECISION:
By majority, appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60065/04
DUNFORD J
ADAMS J
HOWIE J
THURSDAY 1 JULY 2004

REGINA v T R

Judgment

DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgment of Adams J where the facts of the matter are fully set out.
Initially, in documents filed prior to the hearing, the applicant relied on only one ground of appeal namely
1. The sentence imposed upon the applicant gives rise to a justifiable sense of grievance when compared with the sentences imposed upon the co-offenders.
However, following discussion during the Submissions, the applicant was granted leave to file additional grounds of appeal together with written submissions with the right reserved to the Crown to reply to such written submissions. Further Grounds of Appeal was subsequently filed as follows:
2. The sentencing proceedings miscarried as a result of the conduct of the sentencing judge in questioning the witness, Dale Anthony Jones.
3. The sentencing judge erred in failing to have proper regard to delay.
4. The sentencing judge erred in taking into account an irrelevant consideration, namely, the prospect of the applicant being found guilty of a more serious offence.
5. The sentencing judge erred in his application of s 44(1) of the Crimes (Sentencing Procedure) Act, 1999 in that he gave consideration to the non-parole period before giving consideration to the total term.
6. The sentencing judge erred in failing to properly take into account the applicant’s mental condition.
7. The sentence was in all the circumstances, manifestly excessive.
It is convenient to deal with each of the grounds in turn.
On the question of parity, I agree generally with the remarks of Adams J except that, the learned sentencing judge having made a limited adjustment to the sentence of the applicant on this account, I would not make any further allowance in this regard.
As to the second ground of appeal, the questions and comments of the learned sentencing judge to which exception is taken are set out in the judgment of Adams J. The context in which the questions were asked was that Mr Jones, a Youth Worker with the Gold Coast Youth Service in Miami, Queensland, from…

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 TR

Details

AGLC: R v TR [2004] NSWCCA 187
Case: [2004] NSWCCA 187
Decision Date: 1 July 2004

CaseChat Overview and Summary

In the Supreme Court of Queensland, the applicant, a Pacific Islander, appealed against his sentence for maliciously inflicting grievous bodily harm. The offence occurred after the applicant, who was a minor at the time, was provoked by racist remarks. The trial judge had considered the provocation when determining the sentence, but the applicant argued that the sentencing judge's questioning of him about the remarks was inappropriate. The applicant also argued that the delay in sentencing had affected him, and that his sentence should be comparable to sentences handed down to non-Indigenous offenders for similar offences.

The legal issues before the court were whether the sentencing judge's questioning of the applicant was appropriate, whether the delay in sentencing had an impact on the applicant, and whether the sentence was appropriate in light of the principle of parity of sentencing. The court considered whether the sentencing judge's questioning was appropriate in the circumstances, whether the delay in sentencing had any effect on the applicant, and whether the sentence was appropriate in light of the principle of parity of sentencing. The court found that the sentencing judge's questioning was not appropriate, but that the delay in sentencing did not have any significant impact on the applicant. The court also found that the sentence was appropriate in light of the principle of parity of sentencing.

The court dismissed the appeal against sentence, finding that the sentence was appropriate in all the circumstances. The court noted that the sentencing judge had taken into account the provocation and the impact of the delay in sentencing when determining the sentence. The court also found that the principle of parity of sentencing did not require a different sentence in this case. The court noted that the applicant had been sentenced to a term of imprisonment, which was a common sentence for this type of offence. The court concluded that the sentence was appropriate and did not need to be varied.

Orders