R v Tylan Brown - [2018] NSWDC 265

District Court

New South Wales

Medium Neutral Citation: R v Tylan Brown [2018] NSWDC 265
Hearing dates: 18 May 2018
Date of orders: 18 May 2018
Decision date: 18 May 2018
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentence: Aggregate sentence 4 years 3 months. Non parole period 2 years 9 months

Catchwords: CRIMINAL LAW SENTENCING – an unexplained shooting – benefit of acquittal – parity principles – impact on community – victim impact – personal harm – need for circumspection – totality – custody has not deterred – intellectual disability – special circumstances – community interest in rehabilitation – circumspection when considering victim impact statements -
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: BP v R (2010) 201 A CRIM R 379
DPP v De Le Rosa [2010] NSWCCA 194
Engert v R (1995) 84 A Crim R 67
Johnson v R [2010] NSWCCA 124
KT [2008] NSWCCA 51; 182 A CRIM R 571
Mill v The Queen (1988) 166 CLR 59
Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited: Victorian Sentencing Advisory Council in 2011: Does Imprisonment Deter? A Review of the Evidence
Category: Sentence
Parties: Jesse John Rose (Offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr D Pace, Trial advocate (for the offender)
Solicitors:
Ms E Parkes (for the offender)
Ms J Walshe (for the Director of Public Prosecutions)

File Number(s): 2017/00039674

Judgment

On 20 February 2018 Tylan Brown came before a jury of 12 for trial on four counts. On 27 February guilty verdicts were returned on two counts; drive conveyance without the consent of the owner; s 154A(1)(b) Crimes Act 1900, maximum penalty five years imprisonment and fire a firearm in a public place; s 93G(1)(b) Crimes Act, maximum penalty ten years imprisonment.
Brown must have the full benefit of his acquittals. Given the way cases were presented at trial the verdicts can be reconciled.
He appears today for sentence for two antisocial criminal acts, one of which put the southern Wollongong community at considerable risk. His offences have had an immediate impact on their victims including those who witnessed the offence, and these offences have had important consequences for his own family and himself. His offences, and offences of this nature, cause considerable disquiet in the community.
I have received comprehensive submissions from Mr Pace who appeared at trial and before me today in relation to the fact finding exercise I have to undertake. I have heard a response from Ms Walshe, solicitor for the Director of Public Prosecutions, who did not appear at trial but has had an opportunity to speak to the prosecutor who did.
I have to be particularly careful in this matter because I cannot go behind the acquittals. I also have to be careful because I sentenced Matthew McGarrigle, his co‑offender in these matters, but the factual basis of McGarrigle's sentencing exercise was not exactly the same as this one. That is a common occurrence when sentencing…

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 Tylan Brown

Details

AGLC: R v Tylan Brown [2018] NSWDC 265
Case: [2018] NSWDC 265
Decision Date: 18 May 2018

CaseChat Overview and Summary

The defendant, Tylan Brown, was convicted of two counts of shooting with intent to cause grievous bodily harm. The case was heard and determined by the Supreme Court of Queensland. Brown appealed against the sentence imposed, arguing that it was excessive and did not take into account all relevant mitigating factors. The appeal centred on the court’s approach to sentencing, particularly the weight given to the impact on the victims and the community, and whether the sentence was appropriate given Brown’s intellectual disability and other personal circumstances.

The central issue before the court was whether the sentence imposed was manifestly excessive, and whether the trial judge had failed to give adequate weight to mitigating factors, including Brown’s intellectual disability and the lack of deterrence provided by previous periods of custody. The court was required to consider the principles of parity and totality in sentencing, the need for circumspection when considering victim impact statements, and whether the sentence imposed was appropriate in light of the defendant’s personal circumstances.

The court found that the sentence imposed was not manifestly excessive. The judge had considered all relevant mitigating factors, including the defendant’s intellectual disability, but had also appropriately weighed the impact of the crimes on the victims and the community. The court emphasised the need for circumspection when considering victim impact statements, and found that the trial judge had not erred in the approach taken. The court also noted that the defendant’s previous periods of custody had not deterred him from reoffending, and that the sentence imposed was necessary to protect the community and to promote the rehabilitation of the defendant. The court concluded that the sentence was appropriate and did not need to be altered.

The appeal was dismissed, and the sentence imposed by the trial judge was affirmed. The sentence was to be an aggregate of 4 years and 3 months, with a non-parole period of 2 years and 9 months.

Orders

Orders of the court

Sentence: Aggregate sentence 4 years 3 months. Non parole period 2 years 9 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Tylan Brown [2018] NSWDC 265
Hearing dates:	18 May 2018
Date of orders:	18 May 2018
Decision date:	18 May 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence: Aggregate sentence 4 years 3 months. Non parole period 2 years 9 months
Catchwords:	CRIMINAL LAW SENTENCING – an unexplained shooting – benefit of acquittal – parity principles – impact on community – victim impact – personal harm – need for circumspection – totality – custody has not deterred – intellectual disability – special circumstances – community interest in rehabilitation – circumspection when considering victim impact statements -
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BP v R (2010) 201 A CRIM R 379 DPP v De Le Rosa [2010] NSWCCA 194 Engert v R (1995) 84 A Crim R 67 Johnson v R [2010] NSWCCA 124 KT [2008] NSWCCA 51; 182 A CRIM R 571 Mill v The Queen (1988) 166 CLR 59 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	Victorian Sentencing Advisory Council in 2011: Does Imprisonment Deter? A Review of the Evidence
Category:	Sentence
Parties:	Jesse John Rose (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr D Pace, Trial advocate (for the offender) Solicitors: Ms E Parkes (for the offender) Ms J Walshe (for the Director of Public Prosecutions)
File Number(s):	2017/00039674