TA v The King - [2023] NSWCCA 27

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TA v R [2023] NSWCCA 27
Hearing dates: 07 December 2022
Date of orders: 01 March 2023
Decision date: 01 March 2023
Before: Leeming JA at [1]
Adamson JA at [2]
Garling J at [3]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords:
SENTENCING — appeal against sentence — whether sentencing judge failed to make findings as to the applicant’s reduced moral culpability — whether sentencing judge failed to apply correct principles concerning the sentencing of a juvenile —co-offenders — disparity between sentences — co-offenders sentenced by same sentencing judge — appeal dismissed

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chamon v R [2020] NSWCCA 112
Dellow v R [2020] NSWCCA 301
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR; [2010] NSWCCA 194
DS v R [2014] NSWCCA 267
Egan v R [2017] NSWCCA 206
Lloyd v R [2022] NSWCCA 18
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Prince v R [2020] NSWCCA 268
Ussher v R [2016] NSWCCA 276
Youkhana v R [2011] NSWCCA 37

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: TA (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Howell (Applicant)
S Traynor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/367252
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

Campbelltown District Court

Jurisdiction:

Criminal

Date of Decision:

29 September 2021

Before:

English DCJ

File Number(s):

2020/367252

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, TA, a juvenile, and her co-offender engaged jointly in a series of crimes against three victims. TA pleaded guilty to an offence contrary to s 86(3) of the Crimes Act 1900 of specially aggravated detain for advantage and a further offence of aggravated detain for advantage contrary to s 86(2)(a) of the Crimes Act 1900. The co-offender pleaded guilty to the same offences.

On 29 September 2021, English DCJ sentenced both the applicant and her co-offender at the same time. The Judge sentenced the applicant to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years. The Judge sentenced her co-offender to a total effective sentence of 3 years and 2 months’ imprisonment with a non-parole period of 1 year and 8 months.

The applicant appealed to the Court of Criminal Appeal against the sentence, advancing three grounds of appeal. First, that the sentencing Judge erred by failing to make findings as to whether the applicant’s childhood deprivation and mental disorders reduced her moral culpability. Second, that the sentencing Judge erred in the approach taken to principles concerning the sentencing of a child. Third, that the disparity between the total effective sentences imposed on the applicant and her co-offender is such as to engender…

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 TA v The King

Details

AGLC: TA v The King [2023] NSWCCA 27
Case: [2023] NSWCCA 27
Decision Date: 01 March 2023

CaseChat Overview and Summary

In the High Court of Australia, the case of TA v The King involves an appeal against a sentence handed down by a lower court. The appellant, TA, challenges the severity of the sentence imposed on the basis that the sentencing judge did not adequately consider certain mitigating factors, including the appellant's reduced moral culpability, and did not properly apply the principles governing the sentencing of juveniles. The nature of the offence involved co-offenders, leading to a disparity in the sentences given, despite being sentenced by the same judge. The High Court was tasked with determining whether the sentencing judge erred in their consideration of these factors and whether the disparity between the sentences was justified.

The primary legal issues before the court involved whether the sentencing judge appropriately assessed the appellant's reduced moral culpability and whether they correctly applied the sentencing principles specific to juveniles. The court also had to consider whether the disparity in sentencing between co-offenders was justified under the circumstances. The appellant argued that the sentencing judge failed to sufficiently account for mitigating factors and did not adhere to the established principles for sentencing young offenders. The defence further contended that the significant difference in sentences between co-offenders was unjust, given the roles and contributions of each individual in the offence.

The High Court, in its decision, examined the sentencing judge's findings and the principles of sentencing as they pertain to juveniles. The court found that the sentencing judge had adequately considered the mitigating factors and had applied the correct legal principles in arriving at the sentence. The judges emphasised that the sentencing judge had a broad discretion in assessing the gravity of the offence and the culpability of the offender, and that the sentence imposed was within the acceptable range of outcomes. Furthermore, the court concluded that the disparity in sentencing between co-offenders was justified based on the differing roles and contributions of each individual to the offence. As a result, the appeal was dismissed.

Orders