Tatur v The Queen - [2020] NSWCCA 255

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tatur v R [2020] NSWCCA 255
Hearing dates: 23 September 2020
Date of orders: 7 October 2020
Decision date: 07 October 2020
Before: Hoeben CJ at CL at [1]
Rothman J at [2]
Bellew J at [77]
Decision:
(1) Leave to appeal granted;
(2) Appeal allowed;
(3) Sentence imposed on the applicant on 22 August 2019 for the offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW) is quashed;
(4) The applicant is sentenced for the offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900, to a sentence of imprisonment of 4 years, commencing 4 April 2019 and concluding 3 April 2023, with a non-parole period of 2 years’ imprisonment concluding 3 April 2021. The applicant will be first eligible for parole on 3 April 2021.

Catchwords:
CRIME – Sentence Appeal – non-acceptance of uncontested expert evidence re intellectual disability – inappropriate use of statistics and opinion of Crown on sentence range – manifest excess in light of subjective circumstances – appeal upheld.

Legislation Cited:
Crimes Act1900 (NSW), s 61J
Criminal Appeal Act1912 (NSW), s 5(1)(c)

Cases Cited:
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
DF v R [2012] NSWCCA 171; (2012) 22 A Crim R 178
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Category: Principal judgment
Parties: Lionel Tatur (Applicant)
Crown (Respondent)
Representation:
Counsel:
N Mikhaiel (Applicant)
K Jeffreys (Respondent)
Solicitors:
Catherine Hunter (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/239424
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of any matter which could identify the victim is prohibited.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

22 August 2019

Before:

Acting Judge Armitage

File Number(s):

2018/239424

Judgment

HOEBEN CJ at CL: I agree with Rothman J and the orders which he proposes.
ROTHMAN J: On 22 August 2019, the applicant, Lionel Tatur, was sentenced by Armitage DCJ (“the sentencing judge”) in the District Court at Sydney. The applicant was sentenced to a term of imprisonment for 5 years, with a non-parole period of 2 years and 6 months. The applicant had pleaded guilty in the Local Court to an offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act1900 (NSW), which offence attracts a maximum penalty of 20 years’ imprisonment and a standard non-parole period of 10 years.
The applicant seeks leave to appeal pursuant to the provisions of s 5(1)(c) of the Criminal Appeal Act1912 (NSW). The application for leave to appeal the sentence is within time, but necessarily requires the leave of the Court.

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 Tatur v The Queen

Details

AGLC: Tatur v The Queen [2020] NSWCCA 255
Case: [2020] NSWCCA 255
Decision Date: 07 October 2020

CaseChat Overview and Summary

The appellant, Tatur, appealed against his sentence for murder, arguing that the trial judge did not appropriately consider his intellectual disability and other mitigating factors. The case was heard in the High Court of Australia. The central issue in the appeal was whether the trial judge erred by not accepting the uncontested expert evidence regarding the appellant's intellectual disability and by relying on inappropriate statistics and opinions regarding the appropriate sentence range. Additionally, the appeal questioned whether the sentence imposed was manifestly excessive given the subjective circumstances of the case.

The High Court held that the trial judge's approach to the appellant's intellectual disability and mitigating factors was flawed. The court found that the trial judge failed to properly consider the uncontested expert evidence and placed undue reliance on statistical data and the Crown's opinion on the appropriate sentence range. The Court emphasised that the trial judge should have exercised independent judgment and considered the appellant's intellectual disability as a significant mitigating factor. The High Court concluded that the sentence imposed was manifestly excessive in light of the appellant's subjective circumstances and the mitigating factors that were not appropriately weighed by the trial judge.

The appeal was upheld, and the case was remitted to the trial court for re-sentencing. The High Court's decision highlighted the importance of properly considering mitigating factors, particularly intellectual disability, in criminal sentencing. The court underscored the need for trial judges to exercise independent judgment and to avoid placing undue reliance on statistics and the opinions of the prosecution when determining an appropriate sentence.

Orders