Tazelaar v R - [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);

Crimes Act

3 There were two Form 1 documents. 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 Tazelaar v R

Details

AGLC: Tazelaar v The Queen [2009] NSWCCA 119
Case: [2009] NSWCCA 119
Decision Date: 29 April 2009

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