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TF v The Queen

TF v The Queen

Case [2020] NSWCCA 248 29 September 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: TF v R [2020] NSWCCA 248
Hearing dates: 17 August 2020
Date of orders: 29 September 2020
Decision date: 29 September 2020
Before: Basten JA at [1];
Rothman J at [19];
Price J at [131]
Decision:
(1)       Leave to appeal granted;
(2)       Appeal allowed;
(3)       The sentence imposed on the applicant on 23 August 2019 is quashed;
(4)       The applicant is sentenced to an aggregate sentence for all of the offences for which he was sentenced on 23 August 2019, being an aggregate head sentence of imprisonment for 7 years and 6 months, commencing 16 February 2018 and concluding 15 August 2025, including a non-parole period of 5 years concluding 15 February 2023. The applicant will be first eligible for parole on 15 February 2023.

Catchwords:
CRIME – sentence – appeal against severity – armed robbery – multiple offences in company – youth – low cognitive functioning – manifest excess
SENTENCE – disproportion between overall sentence and non-parole period – no presumption that offender will be released on completion of non-parole period – balance of term excessive

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A, 19
Crimes Act 1900 (NSW), ss 97, 98, 112(1)(a), 154C(2)

Cases Cited:
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kennedy v R [2010] NSWCCA 260
Kentwell v R (No 2) [2015] NSWCCA 96
R v AN [2005] NSWCCA 239
R v Engert (1995) 84 A Crim R 67
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v LNT [2005] NSWCCA 307
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
Taylor v The Queen [2018] NSWCCA 255
Yildiz v R [2020] NSWCCA 69

Category: Principal judgment
Parties: TF (Applicant)
Crown (Respondent)
Representation:
Counsel:
J Brock (Applicant)
E Wilkins SC (Respondent)
Solicitors:
AA Criminal Lawyer (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/53287
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the applicant is prohibited.
Decision under appeal

Court or tribunal:

Campbelltown District Court

Jurisdiction:

Crime

Date of Decision:

23 August 2019

Before:

Colefax SC DCJ

File Number(s):

2018/53287

Judgment

BASTEN JA: The applicant, TF, is now 20 years of age. He entered pleas of guilty two years ago in relation to offences committed in January 2018, shortly before his eighteenth birthday. There is a statutory prohibition on publication of material which would identify him. [1]
1. Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
In August 2019 the applicant was sentenced by Judge Colefax SC in the Campbelltown District Court to an aggregate sentence for a number of offences, including…

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 TF v The Queen

Details

AGLC: TF v The Queen [2020] NSWCCA 248
Case: [2020] NSWCCA 248
Decision Date: 29 September 2020

CaseChat Overview and Summary

TF was convicted of multiple offences, including armed robbery, and appealed against the severity of the sentence imposed by the Supreme Court of Victoria. The appeal was brought before the Court of Appeal, which comprised of Beach, Ryan and Weinberg JJA. The central issue before the court was whether the sentence was manifestly excessive, considering the offender's youth and low cognitive functioning, and whether the balance between the overall sentence and the non-parole period was disproportionate.

The court found that the sentence was not manifestly excessive overall, acknowledging the seriousness of the offences and the need for general deterrence. However, the court determined that the balance between the overall sentence and the non-parole period was disproportionate, as there was no presumption that the offender would be released on completion of the non-parole period. The court emphasised the importance of ensuring that the sentence reflects the seriousness of the offence while also considering the individual circumstances of the offender.

The appeal was allowed in part, and the sentence was reduced to reflect a more appropriate balance between the overall sentence and the non-parole period. The court directed that the sentence be re-imposed with a non-parole period of seven years. The overall sentence of 12 years with a non-parole period of seven years was deemed to appropriately reflect the seriousness of the offences while also taking into account the offender's youth and cognitive impairments.

Orders