Bathurst CJ at [1]; Price J at [2]; N Adams J at [3].
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords:
CRIME — Appeals — Appeal against sentence – whether sentencing judge erred in fixing commencement date of sentence at the expiration of the applicant’s head sentence for previous offences – where offences were committed against another inmate in gaol – need for general deterrence and discipline in custodial environment – whether sentencing judge erred in applying finding of special circumstances – where applicant had already served a sentence of 6 years commencing at the age of 18 – where sentencing judge fixed ratio of 57% for index offences – where total effective ratio was 76.9% – whether by inadvertence or miscalculation – where sentencing judge expressly took into account accumulation of sentences – held, no error
Jacob Tammer-Spence (Applicant) Regina (Respondent)
Representation:
Counsel: D Roff (Applicant) S Traynor (Respondent)
Solicitors: McGirr Lawyers Solicitor for Public Prosecutions (NSW)
File Number(s):
2017/14637
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
1 March 2019
Before:
Arnott SC DCJ
File Number(s):
2017/14637
Judgment
BATHURST CJ: I agree with the orders proposed by N Adams J and with her Honour’s reasons.
PRICE J: I agree with N Adams J.
N ADAMS…
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.
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Details
AGLC
Tammer-Spence v R [2021] NSWCCA 90
Case
[2021] NSWCCA 90
Decision Date
CaseChat Overview and Summary
Tammer-Spence appealed against his sentence for assaulting another inmate while incarcerated, arguing that the sentencing judge erred in fixing the commencement date of his sentence at the expiration of his head sentence for previous offences. The appeal was heard by the High Court of Australia. The legal issues centred on whether the sentencing judge erred in determining the commencement date of the sentence, applying findings of special circumstances, and calculating the total effective ratio of the sentence.
The court examined the principles of sentencing for custodial sentences and the need for general deterrence and discipline in the custodial environment. It considered whether the sentencing judge erred in applying findings of special circumstances and whether the total effective ratio was correctly calculated. The court found that the sentencing judge did not err in fixing the commencement date of the sentence or in applying the findings of special circumstances. The court also determined that the total effective ratio was 76.9%, which was not due to inadvertence or miscalculation. The court held that the sentencing judge expressly took into account the accumulation of sentences.
The appeal was dismissed, and the original sentence was upheld. The court's decision reinforces the importance of considering the custodial environment and the need for general deterrence in sentencing. It also highlights the court's scrutiny of the total effective ratio and the application of findings of special circumstances.