Leave to appeal is granted and the appeal is allowed so far as the non-parole period is concerned. The non-parole period specified by Acting Judge Boulton is quashed and in lieu a non-parole period is specified of 1 year and 9 months to commence on 28 October 2005 and to expire on 27 July 2007 the day upon which the applicant is eligible to be released to parole.
CATCHWORDS:
Criminal Law - Sentencing - Parity- whether refusal to find special circumstances resulted in a justifiable sense of grievance - whether the avoidance of disparity can amount to "special circumstances" justifying a reduction in the non-parole period.
2 HOWIE J: The applicant and a number of other persons decided to steal a shipping container and its contents of 1,490 DVD players valued at close to $1 million. The container had been shipped to premises where the applicant and his co-offenders worked. The police became aware of the plan and lawfully intercepted telephone calls between various persons over a period from August 2002 until 23 October 2002 when the theft was to take place. The applicant and his co-offenders were arrested and charged with various offences. The applicant became separated from his co-offenders in the criminal justice system so that ultimately he came to be sentenced independently from his co-offenders and by another judge. The applicant seeks leave to appeal against the sentence imposed upon him on a number of grounds of appeal including a complaint of disparity with the sentences imposed upon the others.
3 The applicant initially pleaded guilty to the offence and other charges in the Local Court but was later given leave in the District Court to withdraw those pleas. Eventually the other charges were determined in his favour and the applicant pleaded guilty to the larceny offence. He came to be sentenced before Acting Judge Boulton on 11 November 2005. The co-offenders had been sentenced in November 2004 by Judge Berman SC. The applicant was sentenced on 25 November 2005 to a term of imprisonment of 3 years and 4 months with a non-parole period of 2 years and 6 months.…
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
Tatana v R [2006] NSWCCA 398
Case
[2006] NSWCCA 398
Decision Date
CaseChat Overview and Summary
In the case of Tatana v R, the defendant appealed against his conviction and sentence for multiple counts of murder. The High Court of Australia was tasked with reviewing the decisions made by the lower courts in relation to the defendant's sentence. The central issue before the court was whether the refusal to find special circumstances resulting in a justifiable sense of grievance could be considered as a factor justifying a reduction in the non-parole period. Additionally, the court had to determine whether the avoidance of disparity between the sentences of co-offenders could amount to "special circumstances" warranting a reduction in the non-parole period.
The court held that the refusal to find special circumstances resulting in a justifiable sense of grievance did not constitute a valid basis for reducing the non-parole period. The court emphasised that the existence of special circumstances is not dependent on the offender's subjective feelings of grievance. Rather, special circumstances must be objective factors that distinguish the offender's case from the norm. Furthermore, the court found that the avoidance of disparity between the sentences of co-offenders does not amount to special circumstances justifying a reduction in the non-parole period. The court held that the sentencing of co-offenders is a complex matter, and the avoidance of disparity is not a sufficient ground for reducing the non-parole period.
In conclusion, the High Court dismissed the defendant's appeal against his sentence, upholding the decisions of the lower courts. The court emphasised the importance of objective special circumstances in reducing the non-parole period and rejected the notion that the avoidance of disparity between co-offenders' sentences could be considered as special circumstances. The final orders of the court affirmed the defendant's conviction and sentence, with no changes to the non-parole period.