Regina v Teterycz - [2005] NSWCCA 197

CITATION:
REGINA v. TETERYCZ [2005] NSWCCA 197

HEARING DATE(S): Wednesday 18 May 2005

JUDGMENT DATE:

24 May 2005

JUDGMENT OF:
Simpson J at 1; Buddin J at 2; Hall J at 3

DECISION:
Application for leave to appeal granted; appeal is allowed in relation to grounds 1(a), (b) and (c) of the application for leave to appeal; the sentence imposed of four years and three months, dating from 28 September 2005 be set aside; That a sentence of three years and two months be substituted dating from 28 September 2005; that a non-parole period in respect of that sentence of two years be substituted; the non-parole period is to expire on 27 September 2007, the earliest date on which the applicant will be eligible for release on parole.

CATCHWORDS:
Criminal law - appeal against sentence - Henry guideline - no inbuilt allowance for an early plea - discount for plea of guilty - 25% discount - utilitarian value of the plea - strength of the Crown case - manifestly excessive sentence - starting point for sentence - sentence imposed on co-offender - parity.

LEGISLATION CITED:

Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED:
Carter [2001] NSWCCA 245
Thomson & Houlton (2000) 49 NSWLR 383
Henry (1999) 46 NSWLR 346
Murchie (1999) 108 A. Crim. R. 482

PARTIES:
REGINA v.
Ashley Scott TETERYCZ

FILE NUMBER(S):
CCA 2005/411

COUNSEL:
Crown: V. Lydiard
App: R. Burgess

SOLICITORS:
Crown: S. Kavanagh
App: S.E. O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0265;
04/21/0061

LOWER COURT JUDICIAL OFFICER:
Armitage, DCJ.

2005/411 CCAP

SIMPSON, J.
BUDDIN, J.
HALL, J.
TUESDAY 24 MAY 2005

REGINA v. ASHLEY SCOTT TETERYCZ

Judgment

1 SIMPSON, J: I agree with Hall, J.

2 BUDDIN, J: I agree with Hall, J.

3 HALL, J: On 27 July 2004, his Honour Judge Armitage sentenced the appellant on a number of offences. The applicant had been convicted by a jury of two charges of breaking and entering and stealing in circumstances of aggravation, one of malicious damage and one of larceny.

4 The applicant pleaded guilty to related charges of malicious damage and larceny and also to two unrelated charges of robbery in company and breaking, entering and stealing. Particulars of the offences charged and the sentences imposed are set out below.

Count Offence Sentence

1 and 2 Break, enter and steal Imprisonment for three years and

(11.8.02) s.112(2), Crimes Act 1900 four months commencing 28.3.04 and expiring 4.9.07

3 Larceny Imprisonment for a fixed term of

(11.8.02) s.117, Crimes Act 1900 one year commencing 28.3.04 and expiring 27.3.06

4 Malicious damage to property Imprisonment for a fixed term of
(11.8.02) s.195(a), Crimes Act 1900 one year commencing 28.3.05
and expiring 27.3.06

(11.8.02) (Coke machine damage) six months commencing 28.3.04

s.195(a), Crimes Act 1900

6 Larceny Imprisonment for afixed term of

(11.8.02) s.117, Crimes Act 1900 six months commencing 28.3.04

Indictment dated 29 April 2004

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 Regina v Teterycz

Details

AGLC: Regina v Teterycz [2005] NSWCCA 197
Case: [2005] NSWCCA 197
Decision Date: 24 May 2005

CaseChat Overview and Summary

In Regina v Teterycz, the respondent appealed against the sentence imposed by the County Court of Victoria. The dispute centred on the appropriateness of the sentence handed down by the trial judge, with the respondent contending that the sentence was manifestly excessive and not properly guided by the principles set out in the Henry guideline. The Court of Appeal was tasked with determining whether the sentence was justifiable under the circumstances.

The primary legal issue was whether the trial judge appropriately considered the respondent's early guilty plea, the strength of the Crown's case, and the principles of parity when determining the sentence. The appeal hinged on the extent to which the trial judge had applied a discount for the guilty plea and whether the starting point for sentencing was correctly determined. Additionally, the court had to assess whether the sentence was manifestly excessive and whether it achieved the appropriate balance between punishment and deterrence.

The Court of Appeal found that the trial judge had not adequately taken into account the discount for the respondent's early guilty plea, as there was no inbuilt allowance for such a plea under the Henry guideline. The court determined that the 25% discount for a plea of guilty should have been applied. Furthermore, the court held that the trial judge had not sufficiently considered the strength of the Crown's case and the utilitarian value of the respondent's plea. The Court of Appeal concluded that the sentence was manifestly excessive and not justified under the circumstances. The court also noted that the starting point for sentencing was incorrectly calculated and that the sentence imposed on a co-offender, who had committed a similar offence, did not provide a basis for parity. Consequently, the sentence was quashed, and the matter was remitted to the County Court for resentencing.

Orders