Bathurst CJ at [1] Hoeben CJ at CL at [2] Bellew J at [3]
Decision:
(i)the Crown appeal is allowed; (ii)the sentence imposed by his Honour Judge Craigie SC on 7 August 2013 is quashed; (iii)in lieu thereof, the respondent is sentenced to a non-parole period of 5 years imprisonment commencing on 3 September 2012 and expiring on 2 September 2017, with an additional term of one year and 8 months imprisonment commencing on 3 September 2017 and expiring on 2 May 2019; (iv)the total sentence is one of 6 years and 8 months imprisonment; (v)the respondent will be eligible for release on parole on 2 September 2017; (vi)the total term of imprisonment will expire on 2 May 2019.
Catchwords:
APPEAL - Crown appeal against manifest inadequacy of sentence - respondent found guilty by a jury of causing grievous bodily harm with intent - unprovoked assault constituted by repeated blows upon the victim causing bilateral fracture of the jaw - offending found by sentencing judge to amount to a gratuitous and vicious assault - where respondent had a history of violent offending and was on parole for similar offending at the time - youth of the respondent the sole mitigating factor found by sentencing judge -non-parole period of 3 years, 7 months and 6 days imprisonment, with a balance of term of 2 years, 4 months and 25 days imposed at first instance - sentence manifestly inadequate - particular need for a strong measure of general deterrence - respondent re-sentenced to a non-parole period of 5 years imprisonment with an additional term of 1 year and 18 months - finding of special circumstances not warranted
Counsel: Ms S Herbert - Crown Mr P Coady - Respondent
- Solicitors:
Solicitors: S Kavanagh, Solicitor for Public Prosecutions S E O'Connor,…
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.
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Details
AGLC
R v Tuuta [2014] NSWCCA 40
Case
[2014] NSWCCA 40
Decision Date
CaseChat Overview and Summary
The appeal was brought by the Crown against the sentence imposed on Tuuta, who had been found guilty by a jury of causing grievous bodily harm with intent. The assault in question was unprovoked and involved repeated blows to the victim, resulting in a bilateral fracture of the jaw. The sentencing judge described the offending as gratuitous and vicious, and noted the respondent's history of violent offending, including that he was on parole for similar offences at the time of the current offence. The only mitigating factor identified by the sentencing judge was the youth of the respondent. The sentence imposed was a non-parole period of 3 years, 7 months and 6 days imprisonment, with a balance of term of 2 years, 4 months and 25 days. The Crown appealed against this sentence, arguing it was manifestly inadequate.
The court was required to determine whether the sentence imposed by the sentencing judge was manifestly inadequate, and if so, what an appropriate sentence would be. The court noted the seriousness of the offending, the need for general deterrence, and the respondent's history of violent offending. The court also considered the mitigating factor of the respondent's youth. The court concluded that the sentence imposed was manifestly inadequate, and that a stronger measure of general deterrence was needed. The court re-sentenced the respondent to a non-parole period of 5 years imprisonment, with an additional term of 1 year and 18 months.
The court found that the particular circumstances of the case warranted a sentence that was longer than that imposed by the sentencing judge. The court noted the need for general deterrence, given the respondent's history of violent offending and the seriousness of the current offence. The court also noted that the respondent's youth was the only mitigating factor, and that this did not outweigh the need for a strong measure of general deterrence. The court did not find special circumstances to be present.
In conclusion, the court allowed the Crown's appeal against the sentence imposed on Tuuta. The respondent was re-sentenced to a non-parole period of 5 years imprisonment, with an additional term of 1 year and 18 months. The court did not find special circumstances to be present.