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Tate v The Queen

Tate v The Queen

Case [2012] ACTCA 50 12 December 2012

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PATRICK TATE v THE QUEEN
[2012] ACTCA 50 (12 December 2012)

APPEAL – Appeal against sentence – Specific error – Mistake of fact – Prospects for rehabilitation – No mistake of fact – Appeal ground dismissed.

APPEAL – Appeal against sentence – Manifest excess – Offence of burglary – Range of appropriate sentences – Instinctive synthesis – Sentence within range – Appeal ground dismissed.

Crimes (Sentencing) Act 2005

(ACT), pt 4.2

Criminal Code 2002

(ACT), ss 311, 308

Aldridge v The Queen [2012] ACTCA 17
Dinsdale v The Queen (2000) 202 CLR 321

EG v The Queen [2012] ACTCA 17

Fusimalohi v The Queen [2012] ACTCA 49

Griffiths v The Queen (1977) 137 CLR 293
Hanania v The Queen [2012] NSWCCA 220
Hili v The Queen (2010) 242 CLR 520

House v The King (1936) 55 CLR 499
Kien v The Queen [2012] ACTCA 25

Kovacevic v Mills (2000) 76 SASR 404

Love v The Queen [2012] ACTCA 8

Lowe v The Queen (1984) 154 CLR 606

Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2006) 228 CLR 357

Morris v East (1988) 83 ACTR 1
R v Abbott (2007) 170 A Crim R 306
R v Allinson (1987) 49 NTR 38

R v Campbell [2010] ACTCA 20

R v Eisenach [2011] ACTCA 2
R v Kelly (1993) 30 NSWLR 64
R v O’Donoghue (1988) 34 A Crim R 397

R v Thorn [2010] ACTCA 10
R v TW (2011) 6 ACTLR 18

R v Visconti [1982] 2 NSWLR 104

Richards v The Queen [2012] ACTCA 10

Ritter v R [2012] NSWCCA 121

RR v The Queen [2011] NSWCCA 235

Scognamiglio v R (1991) 56 A Crim R 81
Taylor v R (1978) 22 ALR 599
Wickey v McVicar [2012] ACTCA 38
Wong v The Queen (2001) 207 CLR 584

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 23 – 2011
No. SCC 16 of 2011

Judges: Refshauge, Burns and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 12 December 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 23 – 2011
  )          No. SCC 16 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PATRICK TATE
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Refshauge, Burns and Lander JJ
Date:  12 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed and the sentences imposed by Nield AJ are confirmed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 23 – 2011
  )          No. SCC 16 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PATRICK TATE
Appellant

AND: THE QUEEN
Respondent

Judges:  Refshauge, Burns and Lander JJ
Date:  12 December 2012
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE J:

In September and October 2009, the…

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 Tate v The Queen

Details

AGLC: Tate v The Queen [2012] ACTCA 50
Case: [2012] ACTCA 50
Decision Date: 12 December 2012

CaseChat Overview and Summary

The appellant, Tate, appealed against the sentences imposed by Nield AJ following a conviction for burglary. The appeal was heard by Refshauge, Burns and Lander JJ of the Supreme Court of the Australian Capital Territory.

The Court was required to determine two grounds of appeal against sentence. Firstly, whether there was a specific error in the sentencing judge's assessment of the appellant's prospects for rehabilitation, amounting to a mistake of fact. Secondly, whether the sentence imposed was one of manifest excess, considering the nature of the offence of burglary and the appropriate range of sentences.

Regarding the first ground, the Court found no mistake of fact in the sentencing judge's assessment of the appellant's prospects for rehabilitation. The Court then considered the second ground, assessing whether the sentence was manifestly excessive. Applying the principle of "instinctive synthesis," which involves an overall assessment of the relevant factors, the Court concluded that the sentence imposed by Nield AJ fell within the appropriate range for the offence of burglary.

Consequently, the Court dismissed the appeal and confirmed the sentences imposed by Nield AJ.

Orders

Orders of the court

1. The appeal is dismissed and the sentences imposed by Nield AJ are confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Tate v The Queen [2012] ACTCA 50

Most Recent Citation

Vince v Wickey [2014] ACTSC 258

Cases citing this decision · 13 of 13 shown

Kader v Director of Public Prosecutions
[2024] ACTCA 31

…Tate v The Queen [2012] ACTCA 50…
R v Celeski (No 2)
[2022] ACTSC 393

…32 R v Williams [2022] ACTSC 72 R v NF (No 1) [2016] ACTSC 216 Saga v Reid [2010] ACTSC 59 Talbot v The Queen (1992) 59 A Crim R 383 Tate v The Queen [2012] ACTCA 50 Ward v Marsh [1959] VR 26…
R v Ralston
[2020] ACTCA 47 Para 1

…v O’Donoghue (1988) 34 A Crim R 397 ( O’Donoghue ) at 401; Kentwell v The Queen [2014] HCA 37; 252 CLR 601 ( Kentwell ) at [35]; Tate v The Queen [2012] ACTCA 50 at [50]; Parkinson v Alexander [2017] ACTSC 201 at [176]. It is necessary to identify specific error within the terms of House v The King (1936) 55 CLR 4…
R v Salcedo; R v Stretton (No 3)
[2018] ACTSC 305

…ng practice in respect of the offence of aggravated burglary (in particular Simonds v R [2013] ACTCA 13; Fusimalohi v R [2012] ACTCA 49; and Tate v R [2012] ACTCA 50.) That review revealed a significant range of available sentences for this particular offence, depending on the objective seriousness of the offendin…
R v Antonovic
[2016] ACTSC 77 Para 1

…was not referred to any previous sentences imposed for such offences but I have taken into account the Court of Appeal decisions in Tate v The Queen [2012] ACTCA 50 and Fusimalohi v The Queen [2012] ACTCA 49 and the cases cited therein. These cases do not reveal any consistent pattern of sentencing for such offen…
R v Ogilvie
[2015] ACTSC 296 Para 1

…ses involving sentences for aggravated burglary and burglary; see, for instance, Balthazar v The Queen [2012] ACTCA 26 at [66]-[69]; Tate v The Queen [2012] ACTCA 50 at [71]-[77]; Aldridge v The Queen at [10]-[12]; EG v The Queen [2012] ACTCA 17 at [5]; Simonds v The Queen at [19]-[30]; R v Hutchinson [2014] ACTCA…
R v Steen
[2015] ACTSC 259 Para 1

…en [2015] ACTCA 22, R v Hutchinson [2014] ACTCA 29, Simonds v The Queen [2013] ACTCA 13 , Fusimalohi v The Queen [2012] ACTCA 49 and Tate v The Queen [2012] ACTCA 50. I note too that because he is serving a lengthy sentence already, Mr Steen has been considered unsuitable for a community work condition to a Good B…
R v Ngerengere
[2015] ACTSC 224

…ck v The Queen (2011) 244 CLR 120 R v Hayes [1984] 1 NSWLR 740 R v Kristianssen [2015] ACTSC 159 Simonds v The Queen [2013] ACTCA 13 Tate v The Queen [2012] ACTCA 50…
Rubino v The Queen
[2015] ACTCA 22 Para 19

…ng practice in respect of the offence of aggravated burglary (in particular Simonds v R [2013] ACTCA 13; Fusimalohi v R [2012] ACTCA 49; and Tate v R [2012] ACTCA 50.) That review revealed a significant range of available sentences for this particular offence, depending on the objective seriousness of the offendin…
R v Hutchinson
[2014] ACTCA 29

…d (1999) 48 NSWLR 327 R v JW [2010] NSWCCA 49 R v TW (2011) 6 ACTLR 18 R v Thorn [2010] ACTCA 10 Simonds v The Queen [2013] ACTCA 13 Tate v The Queen [2012] ACTCA 50 The Queen v CV [2013] ACTCA 22 Wong v The Queen (2001) 207 CLR 584…
Vince v Wickey
[2014] ACTSC 258 Para 1

…of imprisonment in this jurisdiction for burglary offences. Cases involving sentences for burglary were summarised by Refshauge J in Tate v The Queen [2012] ACTCA 50 (Tate) . In Tate , his Honour confirmed that sentences of around 18 months were within the range for ordinary domestic burglaries.…
Chen v R
[2013] NSWCCA 116 Para 1

…s Court in Hanania v R [2012] NSWCCA 220, an approach that has recently been endorsed by the Australian Capital Territory Court of Appeal in Tate v R [2012] ACTCA 50 at [51].…
Simonds v The Queen
[2013] ACTCA 13 Para 1

…Two of the cases referred to by the respondent are of particular importance. They are Fusimalohi v R [2012] ACTCA 49 and Tate v R [2012] ACTCA 50. Both were appeals to this Court, constituted by Refshauge, Burns and Lander JJ. The two appeals were heard together. In each case, judgment was delivered on 12 December…

View all 13 citing cases →

Cases cited in this decision · 25 of 25 shown

R v Holder
[2019] SASCFC 73

…lly and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen , quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also ad…
Fusimalohi v The Queen
[2012] ACTCA 49 Para 1

…therwise be inferred because the sentences imposed are plainly unjust. This appeal was heard in conjunction with the appeal in Fusimalohi v The Queen [2012] ACTCA 49 ( Fusimalohi ) due to both appeals raising common issues.…
Hanania v R
[2012] NSWCCA 220 Para 1

…That is because the ground accepts that some regard or weight was given to the factor, but asserts that it was insufficient”: Hanania v The Queen [2012] NSWCCA 220 per Button J, with whom Hoeben JA and Johnson J agreed.…
Wickey v McVicar
[2012] ACTCA 38 Para 1

…Finally, in Wickey v McVicar [2012] ACTCA 38, a sentence of three years for the offence of burglary was reduced to two years and six months. Again, the Court had specific regards to sentencing standards in the Supreme Court when considering the sentence that should be imposed. The Court said (at [25]):…
Remus Ritter v R
[2012] NSWCCA 121 Para 1

…o other cases and the outcome is of little assistance. As R S Hulme J, with whom Hoeben JA agreed (Fullerton J dissenting), pointed out in Ritter v R [2012] NSWCCA 121 at [24], it is not enough for counsel to argue from what happened in one or a limited number of other cases. It might be added that no sentence is in…
Kien v The Queen
[2012] ACTCA 25 Para 1

…Recently, in Kien v The Queen [2012] ACTCA 25, this Court referred to R v Campbell [2010] ACTCA 20 as setting out what is required when appealing against the manifest excess or mangiest inadequacy of a sentence [32]-[35]:…
Love v The Queen
[2012] ACTCA 8 Para 1

…entences to be imposed for the crime of burglary. There have been a number of decisions in this area and Mr Hassall referred to one, Love v The Queen [2012] ACTCA 8. In that case, the appellant had been sentenced to a total sentence of five years imprisonment for seven offences of burglary together with associate…
Richards v The Queen
[2012] ACTCA 10 Para 1

…In Richards v The Queen [2012] ACTCA 10, a sentence of three years and two months was reduced to two years for the offence of burglary.…
EG v The Queen
[2012] ACTCA 17 Para 1

…Thus, in EG v The Queen [2012] ACTCA 17, the Court reduced sentences of imprisonment for offences of burglary from one year and seven months to one year and for the offence of aggravated burglary from two years and four months to 18 months. There were important issues in that case of youth and the use of drugs and…
RR v R
[2011] NSWCCA 235 Para 1

…does not mean that the sentences imposed on the appellant are manifestly excessive. As Johnson J, with whom James J agreed, said in RR v The Queen [2011] NSWCCA 235 at [152]:…
Hili v The Queen
[2010] HCA 45 Para 1

…number of other cases. It might be added that no sentence is in the nature of a precedent. Further, as the High Court pointed out in Hili v The Queen (2010) 242 CLR 520 at 535; [48], numerical equivalence is not the way to show consistency in sentencing.…
R v Thorn
[2010] ACTCA 10 Para 1

…The first decision referred to by the appellant was R v Thorn [2010] ACTCA 10 ( Thorn ), where the offender was sentenced to an aggregate term of imprisonment of four years six months imprisonment, partly suspended, for a lengthy series of offences of dishonesty, including numerous burglaries and thefts. A Crown a…
Jones v The Queen
[2010] NZCA 119

…isapplication of principle, even though where and how is not apparent from the reasons: Wong v The Queen (2001) 207 CLR 584 at 605; Hill v The Queen; Jones v The Queen (2010) 242 CLR 520 at 538-539. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v The Queen (1999) 195 CLR…
Hawkins v Hawkins
[2009] ACTSC 148 Para 32

…ary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]–[35]): 32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]): 46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task…
The Queen v Morse
[2009] NZCA 51

…34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily…
Rama v The Queen
[2006] ACTCA 25

…an be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this…
Markarian v The Queen
[2005] HCA 25 Para 1

…ne a sentence based upon an “instinctive synthesis” of the facts and circumstances relevant to the offences and offender: Markarian v The Queen (2006) 228 CLR 357. As such, there will always be a range of sentences that may legitimately be imposed for an offence of this type.…
Wong v The Queen
[2001] HCA 64 Para 1

…ender appeals and Crown appeals: Griffiths v The Queen (1977) 137 CLR 293 at 326; Lowe v The Queen (1984) 154 CLR 606 at 610–11; Wong v The Queen (2001) 207 CLR 584 at 591; [6]; R v Visconti [1982] 2 NSWLR 104 at 107–8; R v Allinson (1987) 49 NTR 38 at 39. While a sentencing standard cannot dictate the outcome in eve…
Dinsdale v The Queen
[2000] HCA 54 Para 1

…he Court is the same, whether the appeal is an appeal by an offender or by the Crown as pointed out by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321 at 325; [4].…
Kovacevic v Mills
[2000] SASC 106 Para 1

…standard is set by the cumulative force of individual sentences or a deliberate decision of an intermediate court of appeal: Kovacevic v Mills (2000) 76 SASR 404 at 410; [31]–[34]. It appears that both were in play in this case.…
House v R
[1936] HCA 40 Para 1

…ave imposed ourselves: Lowndes v The Queen (1999) 195 CLR 665. The type of error that an appellant must demonstrate was explained in House v The King (1936) 55 CLR 499 at 505:…
Griffiths v The Queen
[1977] HCA 44 Para 1

…onfidence in the criminal justice system. This has been emphasised time and again in both offender appeals and Crown appeals: Griffiths v The Queen (1977) 137 CLR 293 at 326; Lowe v The Queen (1984) 154 CLR 606 at 610–11; Wong v The Queen (2001) 207 CLR 584 at 591; [6]; R v Visconti [1982] 2 NSWLR 104 at 107–8; R v A…
Lowe v R
[1984] HCA 46 Para 1

…is has been emphasised time and again in both offender appeals and Crown appeals: Griffiths v The Queen (1977) 137 CLR 293 at 326; Lowe v The Queen (1984) 154 CLR 606 at 610–11; Wong v The Queen (2001) 207 CLR 584 at 591; [6]; R v Visconti [1982] 2 NSWLR 104 at 107–8; R v Allinson (1987) 49 NTR 38 at 39. While a sent…
Lowndes v The Queen
[1999] HCA 299 Para 1

…In the absence of demonstrated error we may not interfere with the sentences imposed, even if they are sentences we would not have imposed ourselves: Lowndes v The Queen (1999) 195 CLR 665. The type of error that an appellant must demonstrate was explained in House v The King (1936) 55 CLR 499 at 505:…
House v The King
63 WN 176 Para 1

…es we would not have imposed ourselves: Lowndes v The Queen (1999) 195 CLR 665. The type of error that an appellant must demonstrate was explained in House v The King (1936) 55 CLR 499 at 505:…

Legislation cited in this decision · 1

Crimes (Sentencing) Act 2005 (ACT)
1 mention (from Para 1)