TC v R

Case [2009] NSWCCA 296 16 December 2009

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New South Wales
Court of Criminal Appeal

CITATION: TC v REGINA [2009] NSWCCA 296

HEARING DATE(S): Thursday 24 September 2009

JUDGMENT DATE:
16 December 2009

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Hall J at 3

DECISION: Leave to appeal granted.
The appeal is upheld.
The sentences imposed in the District Court be quashed and in lieu thereof the applicant is to be re-sentenced to a non-parole period of five years commencing on 12 February 2008 and expiring on 11 February 2013 and thereafter to a parole period of six years to commence on 12 February 2013 and to expire on 11 February 2019.
The earliest date upon which the applicant will be eligible for release on parole will be 11 February 2013.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – whether sentencing judge failed to take into account the applicant’s pattern of serious drug abuse – the applicant’s substance abuse was a relevant matter for consideration on sentence as an integral factor in his dysfunctional condition – whether sentencing judge failed to have regard to applicant’s mental health – the sentencing judge limited consideration to the causal question as to whether there was a link between the applicant’s dysfunctional condition and the offence – the sentencing judge failed to have regard to the applicant’s psychological or psychiatric problems in evaluating the subjective circumstances of the applicant at the time of offending – appeal upheld – applicant re-sentenced

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: KT v Regina [2008] NSWCCA 51
Regina v Benetiz [2006] NSWCCA 21
Regina v Hemsley [2004] NSWCCA 228
Regina v Henry (1999) 46 NSWLR 346
Regina v Qutami (2001) 127 A Crim R 369
Regina v Todorovic [2008] NSWCCA 49
Regina v Way (2004) 60 NSWLR 168
SS v Regina [2009] NSWCCA 114

PARTIES: TC v
REGINA

FILE NUMBER(S): CCA 2007/11443

COUNSEL: C: N Noman
A: S Corish

SOLICITORS: C: S Kavanagh
A: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/31/0307

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 29 July 2008

No 2007/11443

McCLELLAN CJ at CL
BUDDIN J
HALL J
WEDNESDAY 16 DECEMBER 2009

TC v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hall J.

2 BUDDIN J: I agree with Hall J.

3 HALL J:

(1) Application for leave to appeal against sentence

4 This is an application for leave to appeal by the applicant who is presently 17 years of age (date of birth, 6 June 1992). He was aged 15 years and 2 months at the time of the offence in question and 16 years and 1 month at the time of sentence.

5 The applicant entered a plea of guilty in the District Court in Tamworth on 2 June 2008. The sentencing hearing took place in Sydney on 14 and 29 July 2008. He was sentenced on the latter date in terms set out…

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 [2009] NSWCCA 296
Case: [2009] NSWCCA 296
Decision Date: 16 December 2009

CaseChat Overview and Summary

The appellant, TC, appealed against his sentence on the basis that the sentencing judge failed to consider certain matters that were relevant to his sentencing. The case was heard in the High Court of Australia. TC had pleaded guilty to a number of serious criminal offences, and the sentencing judge imposed a lengthy custodial sentence. TC argued that the sentencing judge failed to take into account his pattern of serious drug abuse, as well as his mental health issues, which he claimed were relevant factors that should have been considered in determining his sentence.

The legal issues that the court was required to decide were whether the sentencing judge failed to consider TC's pattern of serious drug abuse and his mental health issues, which were relevant matters for consideration on sentence. The court had to consider whether the sentencing judge limited the consideration to the causal question as to whether there was a link between TC's dysfunctional condition and the offence, and whether the sentencing judge failed to have regard to TC's psychological or psychiatric problems in evaluating the subjective circumstances of TC at the time of offending.

The court found that the sentencing judge did not adequately consider TC's pattern of serious drug abuse and his mental health issues, which were relevant matters for consideration on sentence. The court held that the sentencing judge limited the consideration to the causal question as to whether there was a link between TC's dysfunctional condition and the offence, and failed to have regard to TC's psychological or psychiatric problems in evaluating the subjective circumstances of TC at the time of offending. The court found that the sentencing judge's failure to consider these matters amounted to a significant error in the sentencing process, and the appeal was upheld. The case was remitted to the sentencing court for re-sentencing.

Orders