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
[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.
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Details
AGLC
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.