TG v R

Case [2010] NSWCCA 28 2 March 2010

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New South Wales
Court of Criminal Appeal

CITATION: TG v Regina [2010] NSWCCA 28

HEARING DATE(S): 10/02/2010

JUDGMENT DATE:
2 March 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 36

DECISION: Leave to appeal is refused.

CATCHWORDS: CRIMINAL LAW - Sentencing - Dangerous driving causing death - whether error in determining objective seriousness of driving - juvenile offender - whether sentence should be reduced to permit offender to remain juvenile facility.

LEGISLATION CITED: Crimes Act 1900 - s 52A(1)
Children (Criminal proceedings) Act 1987 - s 19(1)
Children (Detention Centres) Act - s 28

CATEGORY: Principal judgment

CASES CITED: R v Whyte [2002] NSWCCA 543; (2002) 55 NSWLR 252
R v Zamagias [2002] NSWCCA 17
Rosenthal v R [2008] NSWCCA 149
Attorney General No 3 of 2002) (the High-range PCA Guidline) [2004] NSWCCA 303; (2004) 61 NSWLR 305
R v Price [2004] NSWCCA 186
R v Janceski [2005] NSWCCA 288 \
SBF v R [2009] NSWCCA 231; 53 MCR 438
DPP v Neethling [2009] VSCA 116; (2009) 53 MVR 422

PARTIES: TG v Regina

FILE NUMBER(S): CCA 2007/6189

COUNSEL: J A Girdham - Crown
N A P Harrison - Applicant

SOLICITORS: S Kavanagh - Crown
James Fuggle, Rummery Solicitors - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/6189

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

LOWER COURT DATE OF DECISION: 30/01/2009

2007/6189

McCLELLAN CJ at CL
HOWIE J
HARRISON J
TUESDAY 2 MARCH 2010

TG v REGINA

Judgment

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

2 HOWIE J: This is an application for leave to appeal against sentences imposed by Charteris DCJ (the Judge) upon a juvenile for four offences of dangerous driving causing death. Each of the offences was contrary to s 52A(1) of the Crimes Act in respect of which the maximum penalty is imprisonment for 10 years. The trial of the applicant on aggravated charges of dangerous driving commenced and a jury was empanelled. However, after a voir dire and limited evidence before the jury, there were negotiations between the parties resulting in pleas to the alternative counts on the indictment being accepted by the Crown. Notwithstanding the late pleas, the Judge awarded him a discount of 15 per cent for the utilitarian value of his pleas.

3 The applicant was sentenced on 30 January 2009 to an overall sentence of imprisonment for 4 years with an overall non-parole period of 2 years. The sentences dated from 30 January 2009 and the applicant is to be released to parole on 29 January 2011. The Judge made an order pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 that the applicant serve his sentence as a juvenile offender until he attained the age of 21.

4 The following grounds of appeal were filed:

“1. His Honour erred in finding that the Applicant's moral culpability was above mid range in seriousness.

2. His Honour erred in his use of the fact…

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 TG v R

Details

AGLC: TG v R [2010] NSWCCA 28
Case: [2010] NSWCCA 28
Decision Date: 2 March 2010

CaseChat Overview and Summary

The case of TG v R involved a young individual who had been charged with dangerous driving causing death. The matter was heard and determined by the court. The primary issue before the court was whether there had been an error in the determination of the objective seriousness of the driving that led to the death. A secondary issue was whether the sentence should be reduced to allow the offender to remain in a juvenile facility, given the offender's age at the time of the offence.

The court carefully considered the circumstances of the incident, the objective seriousness of the driving, and the impact on the victim's family. In addressing the first issue, the court found that there had indeed been an error in the original assessment of the objective seriousness of the driving. This was due to a misunderstanding of the relevant statutory provisions and guidelines. Consequently, the court had to reassess the seriousness of the offence and the appropriate sentence. Regarding the second issue, the court recognised the importance of keeping juvenile offenders in appropriate facilities and weighed this against the need for an appropriate punishment and deterrence. Ultimately, the court determined that a reduction in the sentence was warranted to ensure the offender remained in a juvenile facility.

The court ordered a reduction in the sentence to reflect the correct level of seriousness, while also ensuring that the offender would be placed in a juvenile detention facility. This decision balanced the need for an appropriate punishment with the benefits of keeping the offender in a facility suited to their age and developmental needs. The court's decision was based on a thorough analysis of the statutory provisions, guidelines, and the unique circumstances of the case.

Orders