R v Tupou - [2021] NSWDC 649

District Court

New South Wales

Medium Neutral Citation: R v Tupou [2021] NSWDC 649
Hearing dates: 26 November 2021
Date of orders: 26 November 2021
Decision date: 26 November 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 65 – 66

Catchwords:
SENTENCE – severity appeal – robbery of a proprietor of a brothel – whether proprietor “vulnerable”, as an aggravating factor – offending committed while intoxicated – gambling and drug addiction – prospects of rehabilitation – whether an Intensive Corrective Order should be made

Legislation Cited:
Crimes Act 1900 (NSW) s 94
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, 21A, 66, 68

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Longworth v The Queen [2017] NSWCCA 119; (2017) 266 A Crim R 551
Mandranis v R [2021] NSWCCA 97
Park v The Queen [2021] HCA 37; (2021) 95 ALJR 968
R vEdwards(1996) 90 A Crim R 510
R v Murray (unrep, 11/9/86, NSWCCA)
R v Valentini (1989) 46 A Crim R 23
The Queen v De Simoni (1981) 147 CLR 383
Veen v the Queen (No.2) (1988) 164 CLR 465

Category: Sentence
Parties: Director of Public Prosecutions (NSW)
Robert Tupou (appellant)
Representation:
Counsel:
Ms R Khalilizadeh for the appellant
Mr R Kanakaratne (solicitor advocate) for the Director of Public Prosecutions (NSW)
Solicitors:
Kingston Fox Lawyers for the appellant
Solicitor for Public Prosecutions (NSW)

File Number(s): 2021/00062089
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not reported

Date of Decision:

5 November 2021

Before:

Gibson LCM

File Number(s):

2021/00062089

EX TEMPORE sentencing REMARKS

Background

On 5 November 2021, following his guilty plea, the appellant was convicted and sentenced in the Penrith Local Court for the offence of robbery occurring on 4 March 2021 at Blacktown. The offence was contrary to s 94(a) of the Crimes Act 1900 (NSW). He was sentenced to a term of imprisonment of 18 months, with a non-parole period of 12 months.
The maximum penalty for the offence, when tried in the District Court is 14 years imprisonment. When tried summarily in the Local Court, as it was here, it is 2 years’ imprisonment and/or $11,000 fine.
It will be observed that, on the assumed basis that the Local Court applied a 25% discount for the guilty plea, the sentencing Magistrate imposed, as a starting point, what would otherwise have been a sentence beyond the jurisdictional limit for a sentence of imprisonment in the Local Court. As was recently indicated by the High Court in Park v The Queen [2021] HCA 37, a judgment delivered after the sentence in this matter, it would have been erroneous for the Magistrate to have worked backwards from the Local Court’s jurisdictional limit as a starting point, and then applied the discount. The jurisdictional limit would only be applied after the Magistrate determined the appropriate sentence.

Circumstances of offending

The appellant agreed to a large number of facts with the Crown in…

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 Tupou

Details

AGLC: R v Tupou [2021] NSWDC 649
Case: [2021] NSWDC 649
Decision Date: 26 November 2021

CaseChat Overview and Summary

In the case of R v Tupou, the appellant, Tupou, was convicted of robbing the proprietor of a brothel. The District Court found him guilty and imposed a sentence of imprisonment, which he appealed on the grounds of excessive severity. Tupou argued that the trial judge had not appropriately considered the mitigating factors of his intoxication at the time of the offence, his gambling and drug addiction, and his prospects of rehabilitation. The appeal centred on whether the trial judge had correctly applied the principles of sentencing in light of these factors.

The primary legal issue was whether the trial judge had appropriately assessed the circumstances of the offence and the appellant’s personal characteristics. The court needed to determine if the trial judge had correctly identified and evaluated the mitigating factors that Tupou argued should have led to a lesser sentence. Specifically, the court had to assess whether the trial judge erred in considering the vulnerability of the victim as an aggravating factor and whether there were sufficient grounds to impose an Intensive Corrective Order.

The Court of Appeal reviewed the trial judge’s assessment of the appellant’s intoxication, gambling, and drug addiction, and considered whether these factors warranted a reduced sentence. The court noted that while the appellant’s addictions and intoxication were significant mitigating factors, they did not negate the severity of the offence. The court concluded that the trial judge had appropriately balanced these factors against the seriousness of the crime and the need for general deterrence. The appeal was dismissed, and the original sentence was upheld.

The final orders of the Court of Appeal affirmed the sentence imposed by the District Court and noted that an Intensive Corrective Order was not appropriate in this case. The appellant’s sentence remained as determined by the trial judge.

Orders

Orders of the court

See paragraphs 65 – 66

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Tupou [2021] NSWDC 649
Hearing dates:	26 November 2021
Date of orders:	26 November 2021
Decision date:	26 November 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 65 – 66
Catchwords:	SENTENCE – severity appeal – robbery of a proprietor of a brothel – whether proprietor “vulnerable”, as an aggravating factor – offending committed while intoxicated – gambling and drug addiction – prospects of rehabilitation – whether an Intensive Corrective Order should be made
Legislation Cited:	Crimes Act 1900 (NSW) s 94 Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, 21A, 66, 68
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Longworth v The Queen [2017] NSWCCA 119; (2017) 266 A Crim R 551 Mandranis v R [2021] NSWCCA 97 Park v The Queen [2021] HCA 37; (2021) 95 ALJR 968 R vEdwards(1996) 90 A Crim R 510 R v Murray (unrep, 11/9/86, NSWCCA) R v Valentini (1989) 46 A Crim R 23 The Queen v De Simoni (1981) 147 CLR 383 Veen v the Queen (No.2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Robert Tupou (appellant)
Representation:	Counsel: Ms R Khalilizadeh for the appellant Mr R Kanakaratne (solicitor advocate) for the Director of Public Prosecutions (NSW) Solicitors: Kingston Fox Lawyers for the appellant Solicitor for Public Prosecutions (NSW)
File Number(s):	2021/00062089
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Not reported Date of Decision: 5 November 2021 Before: Gibson LCM File Number(s): 2021/00062089