Tafra v The King - [2024] NSWCCA 190

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tafra v R [2024] NSWCCA 190
Hearing dates: 16 August 2024
Date of orders: 18 October 2024
Decision date: 18 October 2024
Before: Stern JA at [1]
Cavanagh J at [1]
Sweeney J at [1]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – Manifest excess – where applicant sentenced for 2 counts of aggravated sexual intercourse without consent, in company – where applicant sentenced on a joint criminal enterprise basis but found to be the instigator and organiser of the assault – whether the fact that the conduct was not motivated by sexual gratification lessens the severity of the offending

Legislation Cited:
Crimes Act 1900 (NSW), ss 61JA, 61J, 61HA

Cases Cited:
Dinsdale v The Queen (2000) 202 CLR 321
Franklin v R [2013] NSWCCA 122
Haines v R [2012] NSWCCA 238
Imrak v R; Dagdanasar v R [2021] NSWCCA 178
LG v R [2012] NSWCCA 249
Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2005) 228 CLR 357
PN v R [2024] NSWCCA 86
R v MAK [2005] NSWCCA 369
Shalida v R [2024] NSWCCA 55

Category: Principal judgment
Parties: Lawrence Tafra (Applicant)
Rex (Respondent)
Representation:
Counsel:
P D Rosser KC (Applicant)
J Styles (Respondent)
Solicitors:
Rice More & Gibson (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/91236
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

12 May 2023

Before:

Huggett DCJ

File Number(s):

2021/91236

HEADNOTE

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

The applicant sought leave to appeal from a sentence imposed upon him by Huggett DCJ (as her Honour then was) in respect of two counts of aggravated sexual intercourse without consent, in company, contrary to s 61JA(1) of the Crimes Act 1900 (NSW). The sole ground of appeal was that the sentence was manifestly excessive.

The sentencing judge provided indicative sentences in respect of both offences of 11 years and 4 months, with a non-parole period of 7 years. Her Honour imposed an aggregate sentence of 14 years and 6 months with a non-parole period of 8 years and 6 months. The applicant was sentenced at the same time as two co-offenders, Holly Moran and Kaylene Moran.

The applicant was involved in selling drugs. He believed that whilst at his house the victim and two men with her had stolen some of his drugs and fled. After chasing them in his vehicle, the applicant arranged for the victim to be taken to a house where he asked that she be kept until he arrived. He believed that the victim had secreted some of the stolen drugs in her body. He arranged for the two female co-offenders to attend at the house for the specific purpose of extracting the drugs from the victim’s body.

The victim was detained in a room,…

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 Tafra v The King

Details

AGLC: Tafra v The King [2024] NSWCCA 190
Case: [2024] NSWCCA 190
Decision Date: 18 October 2024

CaseChat Overview and Summary

In the case of Tafra v The King, the applicant appealed against his sentence for two counts of aggravated sexual intercourse without consent, which occurred in the company of others. The court had found that the applicant was both the instigator and organiser of the assault, and had sentenced him on a joint criminal enterprise basis. The central legal issue was whether the fact that the applicant's conduct was not motivated by sexual gratification lessened the severity of the offending. The applicant argued that this factor should have resulted in a lesser sentence.

The court considered the principles of sentencing in the context of joint criminal enterprises and the role of the applicant as the instigator and organiser. The court acknowledged that the absence of a sexual motive might be a mitigating factor, but ultimately determined that the severity of the assault and the applicant's significant role in orchestrating the crime outweighed any potential mitigation. The court found that the sentence imposed was not manifestly excessive, and therefore dismissed the appeal. The reasoning emphasised the importance of considering the gravity of the offences and the offender's role within the criminal enterprise when determining an appropriate sentence.

Orders