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R v Tuhakaraina

R v Tuhakaraina

Case [2016] NSWCCA 81 6 May 2016

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	R v Tuhakaraina
Medium Neutral Citation:	[2016] NSWCCA 81
Hearing Date(s):	19 April 2016
Date of Orders:	6 May 2016
Decision Date:	6 May 2016
Before:	R A Hulme J at [1] Garling J at [2] Wilson J at [13]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – aggravated dangerous driving causing grievous bodily harm – finding of special circumstances by sentencing judge – substantial reduction in non-parole period - whether the non-parole period is manifestly inadequate – principles applicable to a Crown appeal – residual discretion – proximity of release date
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Allen v R [2015] NSWCCA 113 Delaney v R [2013] NSWCCA 150 Dipangkear v R [2010] NSWCCA 156 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Mitrevski v R [2015] NSWCCA 137 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Power v The Queen [1974] HCA 26 R v Edwards (1996) 90 A Crim R 510 R v Fidow [2004] NSWCCA 172 R v Girard [2004] NSWCCA 170 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
Category:	Principal judgment
Parties:	Crown Lui Tuhakaraina (Respondent)
Representation:	Counsel: M Cinque SC (Appellant) D Randle (Respondent) Solicitors: C Hyland – Solicitor for Public Prosecutions (Appellant) M Hempsall – Armstrong Legal (Respondent)
File Number(s):	2014/00337818
Publication Restriction:	None
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Date of Decision:	27 November 2015
Before:	Sweeney DCJ
File Number(s):	2014/00337818

JUDGMENT

R A HULME J: I agree with Wilson J.
GARLING J: Although I agree with the order proposed by Wilson J, I desire to state my own reasons.
The Crown conceded in the course of argument on this appeal that in respect of Ground 2 of the appeal, it “… would be in some difficulty in arguing that the head sentence was manifestly inadequate.” The Crown accepted that the thrust of the appeal was directed to the non-parole period component of the total term of imprisonment.
Consideration of the total sentence, and the facts and matters upon which it was based, satisfies me that it was not manifestly inadequate. It did not fall outside of the range of sentences properly available to the learned sentencing Judge. There is no basis to uphold the Crown’s appeal by reference to Ground 2.
The decision by the learned sentencing Judge to vary the ratio of the non-parole period to the overall sentence from that prescribed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), was a discretionary one involving an evaluative judgment which depended upon a number of findings of fact: R v Simpson [2001] NSWCCA 534 at [73]; (2001) 53 NSWLR 704 (“Simpson”); Allen v R [2015] NSWCCA 113 at [33].
A non-parole period fixed by the…

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 Tuhakaraina

Details

AGLC: R v Tuhakaraina [2016] NSWCCA 81
Case: [2016] NSWCCA 81
Decision Date: 6 May 2016

CaseChat Overview and Summary

The appeal before the court involved the respondent, Tuhakaraina, who had been convicted of aggravated dangerous driving causing grievous bodily harm. The sentencing judge had found special circumstances that led to a substantial reduction in the non-parole period. The Crown, dissatisfied with the sentence, appealed to the court, arguing that the non-parole period was manifestly inadequate.

The central legal issue was whether the sentence imposed by the sentencing judge was manifestly inadequate. The Crown argued that the sentence did not adequately reflect the seriousness of the offence and the harm caused to the victim. The respondent contended that the sentencing judge had correctly considered all relevant factors and that the sentence was appropriate. The court had to determine whether the sentencing judge's decision was flawed and whether the Crown's appeal should be allowed.

The court examined the principles applicable to a Crown appeal in this context, considering the residual discretion of the sentencing judge and the proximity of the release date. The court concluded that the sentencing judge had considered the relevant factors and exercised their discretion appropriately. The court found that the sentence, while reduced due to special circumstances, was not manifestly inadequate. Consequently, the Crown's appeal was dismissed. The court confirmed the original sentence, including the reduced non-parole period, as appropriate and not requiring alteration.

Orders