TB v The Queen

Case [2020] NSWCCA 108


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: TB v R [2020] NSWCCA 108
Hearing dates: 29 April 2020
Decision date: 29 May 2020
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [2];
Harrison J at [191]
Decision:

Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – offences of murder, two offences of specially aggravated break, enter and steal with intention to inflict grievous bodily harm, three offences of aggravated detain for advantage – two home invasions involved – basis of liability participation in a joint criminal enterprise – whether the sentence indicated for murder manifestly excessive – whether asserted error in indicative sentence produced a manifestly excessive aggregate sentence – whether error in the sentencing judge’s approach to special circumstances – no error established – appeal dismissed.
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW) – ss 18, 86(2)(a), 112(3)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3,, 3A, 53A
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited: AB v The Queen [1999] HCA 46;198 CLR 111
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Beale v R [2015] NSWCCA 120
Book v R [2018] NSWCCA 58
Borg v R [2019] NSWCCA 129
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Hogarth v The Queen [2012] VSCA 302; 37 VR 658
JM v R [2014] NSWCCA 297
Kerr v R [2016] NSWCCA 218
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mulato v Regina [2006] NSWCCA 282
Obeid v R [2017] NSWCCA 221
PD v R [2012] NSWCCA 242
Regina v AA, AC, SS, Tatchell and Wildsmith [2010] NSWSC 495
R v Brown [2012] NSWCCA 199
R v Evans, John [2017] NSWSC 1440
R v Graham Keys Smith [2012] NSWSC 1565
R v Kaine (No 2) [2013] NSWSC 1824
R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527
R v Marwan Jubraeel [2014] NSWSC 838
R v Rolfe [2017] NSWSC 1393
R v Safar [2014] NSWSC 376
R v Simpson [2001] NSWCCA 534
R v Swan; R v Kimura (No 2) [2016] NSWSC 1819
SHR v R [2014] NSWCCA 94
Vaughan v R [2020] NSWCCA 3
Category:Principal judgment
Parties: TB – Applicant
Regina – Respondent Crown
Representation:

Counsel:
Mr T Game SC/Ms A Cook – Applicant
Mr E Balodis – Respondent Crown

  Solicitors:
Kiki Kyriacou Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown
File Number(s): 2014/309120
Publication restriction: Order pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the publication of the identity or any information tending to reveal the identity of the applicant be prohibited on the grounds that the order is necessary to protect the safety of the applicant. This order is to take effect throughout the…

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TB v The Queen [2020] NSWCCA 108
Case
[2020] NSWCCA 108
Decision Date

CaseChat Overview and Summary

The case of TB v The Queen involved the appellant, who was convicted of one count of murder, two counts of specially aggravated break, enter and steal with intent to inflict grievous bodily harm, and three counts of aggravated detain for advantage. The events occurred during two home invasions in Victoria. The appellant appealed against his sentence, arguing that it was manifestly excessive. The High Court of Australia was tasked with reviewing the sentence and determining whether there were any errors in the sentencing process that warranted a reduction in the sentence.

The central legal issues in this case were whether the sentence for murder was manifestly excessive, whether any error in the indicative sentence for other offences resulted in a manifestly excessive aggregate sentence, and whether there was any error in the sentencing judge's approach to the special circumstances. The appellant argued that the sentencing judge had misapplied the principles of totality and failed to properly consider the mitigating factors in the context of the joint criminal enterprise. The Court needed to assess these arguments in light of the relevant legal principles and precedents.

The Court found that no error had been established in the sentencing process. The Court held that the sentence for murder was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for such a serious offence. The Court also found that any errors in the indicative sentences for other offences did not cumulatively result in a manifestly excessive aggregate sentence. Furthermore, the Court determined that the sentencing judge had properly considered the special circumstances and applied the principle of totality correctly. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the Court were to dismiss the appeal, leaving the original sentence intact. The Court's decision emphasised the importance of considering the totality of the offending and the mitigating factors in the context of a joint criminal enterprise. The Court also highlighted the high threshold required to successfully challenge a sentence as manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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