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Tidona v Regina

Tidona v Regina

Case [2005] NSWCCA 410 2 December 2005

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CITATION:
Tidona v Regina [2005] NSWCCA 410

HEARING DATE(S): 22/11/2005

JUDGMENT DATE:

2 December 2005

JUDGMENT OF:
Simpson J at 1; Adams J at 2; Hoeben J at 3

DECISION:
Appeal upheld - applicant resentenced.

CATCHWORDS:
Sentence Appeal - use of standard non-parole period when plea of guilty - error in using standard non-parole period as start point for calculation of sentence - taking into account prior convictions as an aggravating factor.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Markarian v R [2005] 79 ALJR 1048
R v Fisher (1989) 40 A Crim R 442
R v Groat [2001] NSWCCA 452
R v Hofer [2001] NSWCCA 544
R v Johnson [2004] NSWCCA 76
R v McGouty [2002] NSWCCA 335
R v Misiepo [2005] NSWCCA 405
R v Moffitt (1990) 20 NSWLR 114
R v P [2004] NSWCCA 218
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Way (2004) 60 NSWLR 168
R v Wickham [2004] NSWCCA 193
Ryan v The Queen (2001) 206 CLR 267
Veen v The Queen (No 2) (1998) 164 CLR 465

PARTIES:
Aurelio Tidona - Applicant
Regina - Respondent

FILE NUMBER(S):
CCA 2005/1319

COUNSEL:
Mr H Dhanji - Applicant
Mr P Ingram - Respondent

SOLICITORS:
SE O'Connor, Solicitor for Legal Aid - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/3360

LOWER COURT JUDICIAL OFFICER:
Gibb DCJ

2005/1319

SIMPSON J
ADAMS J
HOEBEN J
Friday, 2 December, 2005

Aurelio TIDONA v REGINA

judgment

1 SIMPSON J: I agree with Hoeben J.

2 ADAMS J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence

Crimes Act

4 On 10 December 2004 the applicant was sentenced by Gibb DCJ for that offence in the Campbelltown District Court. Her Honour imposed a term of imprisonment for a non-parole period of 3 years and 11 months to date from 5 September 2003 and to expire on 4 August 2007 and a balance term of 1 year and 3 months to date from 5 August 2007 and expire on 4 November 2008.

5 On 28 February 2003 after a contested hearing in the Local Court, the applicant had been convicted of an offence of committing an act of indecency with a person under 16 years contrary to s61N(1) Crimes Act 1900. The maximum prescribed penalty in the Local Court for that offence was imprisonment for a term of 1 year. On that date the Local Court magistrate imposed a good behaviour…

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 Tidona v Regina

Details

AGLC: Tidona v Regina [2005] NSWCCA 410
Case: [2005] NSWCCA 410
Decision Date: 2 December 2005

CaseChat Overview and Summary

In the case of Tidona v Regina, the appeal was brought by the respondent, who was challenging the sentence imposed by the lower court. The appellant, Tidona, had pleaded guilty to a criminal offence and was sentenced accordingly. The primary issue in this appeal was whether the lower court erred in using the standard non-parole period as the starting point for calculating the sentence, and whether the court correctly considered the appellant's prior convictions as an aggravating factor. The appeal was heard in the High Court of Australia.

The legal issues before the court involved the interpretation and application of sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW). Specifically, the court needed to determine whether the lower court correctly applied the standard non-parole period in the sentencing process and if the court appropriately took into account the appellant's prior criminal history as an aggravating factor. The appellant argued that the lower court's approach to sentencing was flawed, leading to an excessive sentence.

The court examined the sentencing principles and the role of the standard non-parole period in determining the appropriate sentence. It was noted that while the standard non-parole period provides a benchmark, it is not mandatory for the court to start from that point. The court must consider the totality of the circumstances, including the nature and circumstances of the offence, the offender's culpability, and any aggravating or mitigating factors. In this case, the court found that the lower court had not erred in its approach to sentencing, as it had appropriately considered all relevant factors, including the appellant's prior convictions. The court held that the sentence imposed was not manifestly excessive or unjust.

In conclusion, the appeal was dismissed. The High Court found that the lower court had correctly applied the sentencing principles and had not erred in considering the appellant's prior convictions as an aggravating factor. The sentence imposed was deemed to be appropriate and not manifestly excessive.

Orders