Tepania v The Queen

Case [2018] NSWCCA 247


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Tepania v R [2018] NSWCCA 247
Hearing dates: 28 September 2018
Date of orders: 02 November 2018
Decision date: 02 November 2018
Before: Payne JA at [1]
Simpson AJA at [2]
Johnson J at [3]
Decision:

1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - aggregate sentence of five years’ imprisonment with a non-parole-period of three years - offences of recklessly causing grievous bodily harm (s.35(2) Crimes Act 1900) and assault occasioning actual bodily harm (s.59(1) Crimes Act 1900) - victim of offences a 10-month old baby - additional offence of common assault on Form 1 - s.35(2) offence a standard non-parole period offence - whether sentencing judge erred in assessment of objective seriousness for both offences - sentencing for standard non-parole period offences - s.54A and s.54B Crimes (Sentencing Procedure) Act 1999-– consideration of legislative amendments made by Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 after Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 - proper construction of ss.54A and 54B - standard non-parole period to be taken into account on sentence as legislative guidepost - relevance of Applicant’s self-induced intoxication, intellectual impairment, socially disadvantaged upbringing and moral culpability - self-induced intoxication excluded by statute from consideration as mitigating factor - other matters to be considered as part of single-stage process of instinctive synthesis to determine appropriate sentence - sentencing Judge had regard to Applicant’s socially disadvantaged upbringing, intellectual impairment and moral culpability in determining sentence - error not established - whether aggregate sentence manifestly excessive - sentence not manifestly excessive - appeal dismissed
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013
Crimes Act 1900
Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014
Criminal Procedure Act 1985
Cases Cited: Biddle v R [2017] NSWCCA 128
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Cowan v R [2015] NSWCCA 118
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Georgopolous v R [2010] NSWCCA 246
House v The King (1936) 55 CLR 499; [1936] HCA 40
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
Kiernan v R [2016] NSWCCA 12
Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55

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Tepania v R [2018] NSWCCA 247
Case
[2018] NSWCCA 247
Decision Date

CaseChat Overview and Summary

The case of Tepania v The Queen involved the appellant appealing against his sentence of five years' imprisonment with a non-parole period of three years for his conviction of recklessly causing grievous bodily harm to a 10-month-old baby and assault occasioning actual bodily harm. The appeal was heard by the New South Wales Court of Criminal Appeal. The appellant argued that the sentencing judge erred in assessing the objective seriousness of the offences and that the aggregate sentence was manifestly excessive.

The court was required to determine whether the sentencing judge erred in the assessment of the objective seriousness of the offences and whether the aggregate sentence was manifestly excessive. The court also considered the legislative amendments made by the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 in light of the decision in Muldrock v The Queen and the proper construction of sections 54A and 54B of the Crimes (Sentencing Procedure) Act 1999. The court examined the relevance of the appellant's self-induced intoxication, intellectual impairment, socially disadvantaged upbringing, and moral culpability in the sentencing process.

The court found that the sentencing judge had not erred in assessing the objective seriousness of the offences and that the standard non-parole period was to be taken into account on sentence as a legislative guidepost. The court held that self-induced intoxication was excluded by statute from consideration as a mitigating factor, and other matters were to be considered as part of a single-stage process of instinctive synthesis to determine the appropriate sentence. The court further found that the sentencing judge had regard to the appellant's socially disadvantaged upbringing, intellectual impairment, and moral culpability in determining the sentence, but the error was not established. The court also held that the aggregate sentence was not manifestly excessive. The appeal was dismissed.

Orders

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Background

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Evidence

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Decision

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Ratio Decidendi

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