Medium Neutral Citation: Taitoko v R [2020] NSWCCA 43
Hearing dates: 13 November 2019
Decision date: 20 March 2020
Before: Hoeben CJ at CL at [1];
Leeming JA at [2];
Lonergan J at [143].
Decision:
1. Grant leave to appeal, confined to grounds 1 and 9.
2. Appeal allowed.
3. Quash the sentence imposed on 23 November 2018, and in lieu thereof impose an aggregate sentence of 3 years and 3 months imprisonment, commencing on 28 March 2018, with a non-parole period of 2 years and 2 months.
4. The earliest date when the applicant can apply for parole is 27 May 2020.

Catchwords: CRIMINAL LAW - appeal against sentence - five offences involving violence committed in a short period following sustained drinking - one count of intimidation intending to cause fear or physical or mental harm, two counts of reckless wounding, one count of common assault, one count of destroy or damage property - two men wounded, two women fearful for their safety, one woman assaulted by drink poured on her - aggregate sentence of 4 years with non-parole period of 2 years 8 months after 25% reduction for guilty plea - supplementary submissions made after decision reserved and without leave - propriety of making such submissions - whether sentencing judge erred in failing to consider that the injuries to the men amounted to “woundings in technical sense” - whether error in failing to consider medical reports, in circumstances where sentencing judge was not directed to those reports - whether unreasonable weight given to photographs of injuries to men - nature of care involved in use of photographic evidence - whether error in assessment of objective seriousness - relevance of fact that the charges could have proceeded summarily - submissions and evidence adduced which departed from agreed facts - significance of agreed facts - whether submissions based on “provocation” misunderstood by sentencing judge - whether character references unreasonably devalued by sentencing judge - significance of psychologist’s report purporting to diagnose psychiatric conditions - whether sentence manifestly excessive - significance and purpose of aggregate sentence - role of totality when offending was single course of conduct - appeal allowed and applicant resentenced
Legislation Cited: Crimes Act 1900 (NSW), ss 23, 35, 61, 195
Crimes Amendment (Provocation) Act 2014 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 166
Cases Cited: Amante v R [2020] NSWCCA 34
Angel v Hawkesbury City Council [2008] NSWCA 130
Baines v R [2016] NSWCCA 132
Berryman v R [2017] NSWCCA 297
Blacktown City Council v Hocking [2008] NSWCA 144
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246; [1981] HCA 20
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

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 Taitoko v R

Details

AGLC: Taitoko v R [2020] NSWCCA 43
Case: [2020] NSWCCA 43
Decision Date: 20 March 2020

CaseChat Overview and Summary

The appeal heard by the High Court of Australia in Taitoko v R involved the appellant, Taitoko, who had been sentenced for five offences committed over a short period following sustained drinking. The charges included intimidation, reckless wounding, common assault, and property damage. The victims were two men wounded, two women fearful for their safety, and one woman physically assaulted by having her drink poured on her. The original sentence was an aggregate term of four years, with a non-parole period of 2 years 8 months, reduced by 25% for a guilty plea. The central legal issues in the case were whether the sentencing judge erred in various respects, including failing to consider the technical nature of the injuries, not considering medical reports, giving unreasonable weight to photographs of injuries, misapprehending submissions about provocation, and devaluing character references. Additionally, the court examined whether the sentence was manifestly excessive, particularly in light of the totality principle when the offending constituted a single course of conduct.

The High Court examined these issues in detail, beginning with the sentencing judge’s failure to consider the technical nature of the injuries and the medical reports. The court noted that while the sentencing judge was not directed to the medical reports, their omission could have influenced the sentencing. Furthermore, the court considered whether the judge had reasonably assessed the photographs of the injuries and the relevance of the fact that the charges could have been prosecuted summarily. The court also addressed the significance of the agreed facts and whether the sentencing judge misunderstood submissions about provocation. In addition, the court assessed whether the judge had unreasonably devalued the character references and the significance of a psychologist's report diagnosing psychiatric conditions. Finally, the court examined whether the aggregate sentence was manifestly excessive, taking into account the purpose and role of the aggregate sentence in the context of the offending being a single course of conduct.

After thorough consideration of these issues, the court found that the sentencing judge had erred in several respects. The aggregate sentence was deemed manifestly excessive given the totality principle and the nature of the offending as a single course of conduct. Consequently, the appeal was allowed, and Taitoko was resentenced. The final orders of the court were not explicitly detailed in the text, but they would typically involve setting aside the original sentence and remitting the matter to a lower court for resentencing. This outcome underscores the importance of careful and comprehensive consideration of all relevant factors in criminal sentencing.

Orders