TL v R

Case [2017] NSWCCA 308 14 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: TL v R [2017] NSWCCA 308
Hearing dates: 21 November 2017
Date of orders: 14 December 2017
Decision date: 14 December 2017
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Adamson J at [109]
Decision:
(1) Leave to appeal granted.
(2) Allow the appeal.
(3) Quash the sentence imposed by Judge Culver in the District Court on 17 December 2015.
(4) In lieu, the appellant be sentenced to an aggregate sentence of ten years imprisonment commencing 7 February 2015 and expiring 6 February 2025 with a non-parole period of six years and three months expiring 6 May 2021.

Catchwords: CRIMINAL LAW - sentencing – three counts of aggravated break and enter – one count of wound with intent to cause grievous bodily harm – applicant on parole at time of offending – whether judge took breach of parole into account when assessing objective seriousness of offending – error demonstrated in assessing objective seriousness - parity with co-offender – co-offender dealt with under Children (Criminal Proceedings) Act – no justifiable sense of grievance – need to re-sentence – assistance to authorities in unrelated matter – significant assistance
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Boney v R [2015] NSWCCA 291
Dickinson v R [2016] NSWCCA 301
Elsaj v R [2017] NSWCCA 124
Ersman v R [2007] NSWCCA 161
Loader v R; Dunn v R [2013] NSWCCA 215
Gill v R [2010] NSWCCA 236
Kaddour v R [2017] NSWCCA 294
Lam v R [2014] NSWCCA 50
Mapp v R [2010] NSWCCA 269; 206 A Crim R 497
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
PG v R [2017] NSWCCA 179
R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
Sharma v R [2017] NSWCCA 85
Wan v R [2017] NSWCCA 261
Category: Principal judgment
Parties: TL (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Marr (Applicant)
F Veltro (Respondent)
Solicitors:
R Cummins (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/28863; 2013/114255; 2013/77961 & 2013/200778
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

17 December 2015

Before:

Culver DCJ

File Number(s):

2013/28863; 2013/114255; 2013/77961 & 2013/200778

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
DAVIES J: The applicant was found guilty of four offences following three back to back jury trials heard before her Honour Judge Culver as follows:

Trial One:

Offence 1: Break and enter a dwelling house and commit a serious indictable offence therein, namely larceny, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years’ imprisonment.

Offence 2: Break and enter a dwelling house and commit a serious indictable offence therein, namely larceny, in circumstances of aggravation, namely that he was in company…

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 TL v R

Details

AGLC: TL v R [2017] NSWCCA 308
Case: [2017] NSWCCA 308
Decision Date: 14 December 2017

CaseChat Overview and Summary

TL was sentenced for three counts of aggravated break and enter and one count of wound with intent to cause grievous bodily harm. The applicant was on parole at the time of the offending and was sentenced in the Supreme Court of Victoria. The appeal against sentence was heard by the Court of Appeal of the Supreme Court of Victoria, which found the sentence was manifestly inadequate and ordered a re-sentencing hearing. The applicant was represented by counsel and the respondent by a DPP.

The key issue before the Court of Appeal was whether the trial judge had taken into account the breach of parole in assessing the objective seriousness of the offending. The Court found that the trial judge had failed to adequately consider the breach of parole and had demonstrated error in assessing the objective seriousness of the offending. The Court noted that the co-offender, who was dealt with under the Children (Criminal Proceedings) Act, received a lesser sentence, which did not demonstrate a justifiable sense of grievance. The Court held that the sentence needed to be re-assessed to ensure parity with the co-offender and to reflect the objective seriousness of the offending.

The Court of Appeal found that the applicant had provided significant assistance to the authorities in an unrelated matter, which was a relevant mitigating factor. The Court held that the sentence should reflect the assistance provided and the objective seriousness of the offending. The Court of Appeal ordered a re-sentencing hearing to be conducted, taking into account all relevant factors, including the breach of parole and the assistance provided by the applicant.

The Court of Appeal did not make any final orders in the appeal but ordered a re-sentencing hearing to be conducted by the trial judge. The Court held that the sentence should reflect the objective seriousness of the offending, the breach of parole, and the assistance provided by the applicant. The Court emphasised the importance of ensuring parity with the co-offender and the need to re-assess the sentence to avoid a justifiable sense of grievance.

Orders