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Tindall v R

Tindall v R

Case [2019] NSWCCA 136 2 August 2019

Appeal

Compensatory Damages

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tindall v R [2019] NSWCCA 136
Hearing dates: 15 March 2019
Date of orders: 02 August 2019
Decision date: 02 August 2019
Before: Simpson AJA at [1]
Bellew J at [27]
Campbell J at [36]
Decision:
(1) Leave to appeal against sentence granted;
(2) Appeal dismissed.
Catchwords:
CRIMINAL LAW – Appeals – objective seriousness – principle of proportionality – whether sentencing judge erred in the assessment of the objective gravity of the offences – whether sentence manifestly excessive – sentencing for standard non-parole period offences
SENTENCING – Absence of an aggravating factor does not diminish gravity of offence – requirement of an assessment based on the facts of each case – no hierarchy of sexual offences according to type of penetration or sexual connection – each offence compounded by eventual abandonment of complainant – whether aggregate sentence imposed by trial judge too severe – whether sentence imposed was unreasonable or plainly unjust – held sentence within bounds of sentencing discretion – held the appeal should be dismissed.
Legislation Cited: Crimes Act 1900 (NSW), ss 61HA, 61J(1), 61M(1)
Crimes (Appeal and Review) Act 2001 (NSW), s 68(A)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), Div 3 of Pt 3, Div 1A of Pt 4
Cases Cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Dodd (1991) 57 A Crim R 349
R v Gebrail (Unrep, 18/11/94, NSWCCA)
Salafia v R [2015] NSWCCA 141
Veen v The Queen (No 2) (1988) 164 CLR 465
Category: Principal judgment
Parties: Scott Tindall (Applicant)
Regina (Respondent Crown)
Representation:
Counsel: S. Fraser (Applicant)
K. Ratcliffe (Respondent)
Solicitors:
Heffernan Legal (Applicant)
Solicitor for Public Prosecution (Respondent Crown)

File Number(s): 2015/152129
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal Jurisdiction

Date of Decision:

25 July 2017

Before:

Judge Wass SC

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Campbell J, in which the relevant facts are stated. The following assumes a familiarity with the facts as so stated.
I am unable to agree with Campbell J that the sentencing judge erred in the manner identified, by conflating the assessment of the objective gravity of the two offences. What her Honour said was:

“I find that both offences are slightly above the mid-range of offending for offences of this kind given the matters that I have already gone to.” (italics added)

The “matters that I have already gone to” was a comprehensive and detailed statement of the facts her Honour found in which she carefully delineated the two offences.
In fact, the ground of appeal pleaded in this respect concerned the assessment of the objective gravity of the two offences. It was framed as follows:

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 Tindall v R

Details

AGLC: Tindall v The Queen [2019] NSWCCA 136
Case: [2019] NSWCCA 136
Decision Date: 02 August 2019

CaseChat Overview and Summary

In the case of Tindall v R, the appellant sought to challenge the sentence imposed by the sentencing judge, arguing that it was manifestly excessive. The dispute centred on the objective seriousness of the offences committed by the appellant, as well as the proportionality of the sentence imposed. The appeal was heard by the Court of Appeal.

The court was required to determine whether the sentencing judge had erred in assessing the objective gravity of the offences and whether the sentence was manifestly excessive. The appellant argued that the absence of an aggravating factor should diminish the gravity of the offence and that the requirement of an assessment based on the facts of each case meant that there was no hierarchy of sexual offences according to the type of penetration or sexual connection. The court also considered whether the aggregate sentence imposed by the trial judge was too severe and whether the sentence was unreasonable or plainly unjust.

The court found that the sentencing judge had not erred in assessing the objective gravity of the offences. The court held that each offence was compounded by the eventual abandonment of the complainant, which contributed to the overall seriousness of the crimes. The court also found that there was no hierarchy of sexual offences, and each offence must be assessed based on the facts of each case. The court held that the aggregate sentence imposed by the trial judge was within the bounds of the sentencing discretion and that the sentence was not unreasonable or plainly unjust. The appeal was dismissed.

The court did not make any final orders beyond dismissing the appeal. The sentence imposed by the trial judge was upheld, and the appellant's conviction remained intact.

Orders