TC v R

Case [2016] NSWCCA 3 2 February 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TC v R [2016] NSWCCA 3
Hearing dates: 2 November 2015
Date of orders: 02 February 2016
Decision date: 02 February 2016
Before: Gleeson JA at [1];
Rothman J at [88];
Bellew J at [89]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – appeals – sentencing – historical indecent assault by young person on 9 year old boy contrary to s 81 of the Crimes Act 1900 (NSW) – further historical indecent assault on 12 year old girl contrary to s 76 of the Crimes Act on a Form 1 – sentencing judge convicted applicant and imposed 2 year good behaviour bond – whether sentencing judge failed to into account the sentencing options under the Child Welfare Act 1939 (NSW) – whether the sentencing judge failed to sentence in accordance with standards at time of the offence – whether sentence unreasonable or plainly unjust – whether the sentencing judge erred by recording conviction – whether no lesser sentence warranted in law
Legislation Cited: Child Welfare Act 1939 (NSW) ss 4, 12, 20, 83
Children (Criminal Proceedings) Act 1987 (NSW) s 14
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10, 10A, 32, 37
Crimes Act 1900 (NSW) ss 76, 81
Criminal Appeal Act 1912 (NSW) s 6
Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW)
Summary Offences Act 1988 (NSW) s 5
Cases Cited: A v Commissioner, New South Wales Commission for Children and Young People [2000] NSWADT 151
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Chin v Ryde City Council [2004] NSWCCA 167; 133 LGERA 312
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
House v The King [1936] HCA 40; 55 CLR 499
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Magnuson v R [2013] NSWCCA 50
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; 166 CLR 59
Morgan v R (1993) 70 A Crim R 368
Papworth v R [2011] NSWCCA 253
R v Boney (Court of Criminal Appeal (NSW), Grove J, 22 July 1991, unrep)
R v DJS [2001] NSWCCA 189
R v Hutchins (1958) 75 WN (NSW) 75
R v Magrin [2004] NSWCA 354
R v Mauger [2012] NSWCCA 51
R v McLeod (Supreme Court (NSW), Maxwell J, 21 March 1983, unrep)
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Moon [2000] NSWCCA 534; 117 A Crim R 497
R v Paris [2001] NSWCCA 83
R v PL [2008] NSWDC 66
R v Price [2005] NSWCCA 285
R v Todd [1982] 2 NSWLR 517
SW v R [2013] NSWCCA 255
Walden v…

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 TC v R

Details

AGLC: TC v R [2016] NSWCCA 3
Case: [2016] NSWCCA 3
Decision Date: 02 February 2016

CaseChat Overview and Summary

The case of TC v R involved a convicted individual appealing against their sentence for two historical indecent assaults. The appellant was convicted of indecently assaulting a 9-year-old boy and a 12-year-old girl, offences committed when the appellant was a young person. The sentencing judge imposed a 2-year good behaviour bond. The appellant argued that the sentencing judge failed to consider sentencing options under the Child Welfare Act 1939 (NSW) and did not sentence in accordance with standards at the time of the offence. The appellant also contended that the sentence was unreasonable or plainly unjust and that the sentencing judge erred by recording the conviction and that no lesser sentence was warranted in law.

The legal issues before the court were whether the sentencing judge erred by not considering sentencing options under the Child Welfare Act, whether the sentence imposed was in accordance with standards at the time of the offence, whether the sentence was unreasonable or plainly unjust, whether the sentencing judge erred by recording the conviction, and whether no lesser sentence was warranted in law. The court considered the principles of sentencing for historical offences and the impact of the appellant's age at the time of the offence. The court also examined the applicability of the Child Welfare Act and the principles of proportionality in sentencing.

The court found that the sentencing judge did not err in failing to consider sentencing options under the Child Welfare Act, as the Act was not applicable to the appellant's offences. The court held that the sentence was proportionate to the gravity of the offences, taking into account the appellant's age at the time of the offence and the need for denunciation and deterrence. The court also found that the sentencing judge did not err in recording the conviction, and that no lesser sentence was warranted in law. The court dismissed the appeal and upheld the sentence imposed by the sentencing judge.

The court's final orders were that the appeal be dismissed, and the sentence of a 2-year good behaviour bond be upheld. The court found that the sentence was proportionate to the gravity of the offences and that no lesser sentence was warranted in law. The court also found that the sentencing judge did not err in recording the conviction or in failing to consider sentencing options under the Child Welfare Act.

Orders