Tazelaar v R

Case [2009] NSWCCA 119


New South Wales
Court of Criminal Appeal

CITATION: Tazelaar v R [2009] NSWCCA 119
HEARING DATE(S): 27 March 2009
 
JUDGMENT DATE: 

29 April 2009
JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 35; Rothman J at 36
DECISION: 1. Leave to appeal granted and appeal upheld in part.
2. Quash the sentence imposed on count 2 and taking into account the matters on the Form 1 for that count sentence the applicant to a non-parole period of 2 years and 6 months commencing on 21 January 2008 with a balance of term of 2 years expiring on 20 July 2012. The non-parole period will expire on 20 July 2010 on which day the applicant will be eligible for release on parole.
3. With respect to counts 6, 8, 10, 12 and 14 sentence the applicant to a fixed term of six months imprisonment in relation to each count to be served concurrently commencing on 21 January 2008.
4. Otherwise the appeal is dismissed.
CATCHWORDS: CRIMINAL LAW - appeal against sentence - totality principle - discretion of sentencing judge when determining whether to accumulate sentences - question of discount afforded to offender who does not plead guilty at earliest opportunity but offers plea only after negotiating with Crown to secure more favourable outcome - appeal upheld in part
LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
CATEGORY: Principal judgment
CASES CITED: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Cahyadi v R (2007) 168 A Crim R 41
R v Dib [2003] NSWCCA 117
R v Hammoud [2000] 118 A Crim R 66
R v Stambolis [2006] NSWCCA 56
R v SY [2003] NSWCCA 291
R v Thomson; R v Houlton [2000] NSWCCA 309
R v Weldon [2002] 136 A Crim R 55
Veen v R (No 2) (1988) 164 CLR 465
Wilkins (1988) 38 A Crim R 445
PARTIES: Mark Edward Tazelaar (Applicant)
The Crown
FILE NUMBER(S): CCA 2007/14678
COUNSEL: J Manuell (Applicant)
N Noman (Crown)
SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2007/14678
LOWER COURT JUDICIAL OFFICER: McGuire DCJ
LOWER COURT DATE OF DECISION: 5 May 2008




                          2007/14678

                          McCLELLAN CJ at CL
                          BUDDIN J
                          ROTHMAN J

                          WEDNESDAY 29 APRIL 2009
TAZELAAR, Mark Edward v R
Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to nine counts on an indictment. The indictment had originally contained a number of other counts but the pleas were accepted in full discharge of the indictment.

2 The relevant counts were as follows:


      Count 1: break and enter with intent (s 113(1) Crimes Act 1900: maximum penalty 10 years imprisonment;)

      Counts 2, 3 and 4: break enter and steal (s 112(1) Crimes Act 1900: maximum penalty 14 years imprisonment);

      Counts 6, 8, 10, 12 and 14:receiving (s 188(1) Crimes Act 1900: maximum penalty 10 years imprisonment)

3 There were two Form 1 documents. The…

Continue reading Tazelaar v R

Sign in free to access the full text

Details
AGLC
Tazelaar v The Queen [2009] NSWCCA 119
Case
[2009] NSWCCA 119
Decision Date

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Tazelaar, against his sentence. The appellant had been convicted of multiple criminal offences and was sentenced to a term of imprisonment. The central issue in the appeal was the application of the totality principle by the sentencing judge when determining whether to accumulate sentences. The appellant contended that the sentencing judge had not adequately considered the circumstances in which he negotiated a plea with the Crown, which led to a more favourable outcome for him. This negotiation, according to the appellant, warranted a discount in his sentence.

The legal issues that the court was required to decide included the extent to which the sentencing judge should take into account the appellant's negotiation with the Crown when determining the sentence and whether the appellant was entitled to a discount in his sentence due to the timing of his plea. The court also needed to consider the appropriate application of the totality principle in the sentencing process.

The court found that the sentencing judge had not appropriately considered the circumstances surrounding the appellant's plea negotiation with the Crown. The court held that when an offender negotiates a plea with the Crown and secures a more favourable outcome, the sentencing judge should consider this factor when determining the sentence. The court found that the appellant's plea negotiation warranted a discount in his sentence. The court also found that the sentencing judge had not adequately applied the totality principle in determining the sentence. The appeal was upheld in part, and the case was remitted to the sentencing judge for reconsideration of the sentence in light of the court's findings.

Orders

Orders of the court

Full text does not contain this section.

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.