TM v R

Case [2023] NSWCCA 185


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: TM v R [2023] NSWCCA 185
Hearing dates: 5 July 2023
Date of orders: 26 July 2023
Decision date: 26 July 2023
Before: Payne JA at [1]
Stern JA at [2]
Yehia J at [3]
Decision:

(1) Leave to appeal granted.

(2) Appeal upheld.

(3) Quash the sentence imposed by the District Court on 24 March 2023.

(4) Impose a term of imprisonment comprising a non-parole period of 9 months commencing on 16 December 2022 and expiring on 15 September 2023, with an additional term of 2 years and 3 months imprisonment, expiring on 15 December 2025.

(5) The applicant is first eligible for release to parole on 15 September 2023.

Catchwords:

CRIME — Appeals — Appeal against sentence —

Sentencing of children — Relevant principles of sentencing — Where 15-year-old commits serious offence of aggravated robbery causing grievous bodily harm — Where moral culpability reduced as a result of a young age and a deprived and disadvantaged background — Where the weight afforded general deterrence moderated — Strong evidence of rehabilitation — Where judge erred in failing to have regard to youth in assessing moral culpability — Where judge erred in failing to have regard to youth in assessing the weight to be afforded to general deterrence — Emphasis on rehabilitation — Errors established — Resentence

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 3(1), 6, 15A, 17, Div 4

Crimes (Sentencing Procedure) Act 1999 (NSW), s 32(1)

Crimes Act 1900 (NSW), ss 96, 97(1)

Cases Cited:

BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Camilleri v R [2023] NSWCCA 106

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

JA v R [2021] NSWCCA 10

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

KTv R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Lee v R [2016] NSWCCA 146

Li v R [2023] NSWCCA 112

Miller v R [2015] NSWCCA 86

MS2 v The Queen [2005] NSWCCA 397; (2005) 158 A Crim R 93

MW v R [2010] NSWCCA 324

Newtown v R [2009] NSWCCA 128

Porter v R [2019] NSWCCA 117

R v Eaton [2023] NSWCCA 125

R v Elliott and Blessington [2006] NSWCCA 305

R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451

R v KS (No 1) [2023] NSWSC 696

R v Millwood [2012] NSWCCA 2

R v Osenkowski (1982) 5 A Crim R 394

R v Valencia Valencia (No 3) [2023] NSWSC 780

RCW v R (No 2) [2014] NSWCCA 190; (2014) A Crim R 541

Sarhene v R [2022] NSWCCA 79

Category:Principal judgment
Parties: TM (Applicant)
Rex (Respondent)
Representation:

Counsel:
T Quilter (Applicant)
E Balodis (Respondent)

Solicitors:
Bernhaut Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s):

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Details
AGLC
TM v R [2023] NSWCCA 185
Case
[2023] NSWCCA 185
Decision Date

CaseChat Overview and Summary

The case of TM v R involved a 15-year-old offender who had committed the serious offence of aggravated robbery causing grievous bodily harm. The defendant appealed against the sentence imposed by the trial judge, arguing that the sentence was manifestly excessive. The appeal was heard by the Court of Appeal, which considered whether the trial judge had erred in various aspects of the sentencing process.

The central legal issues before the court were whether the trial judge had failed to appropriately consider the defendant's youth when assessing moral culpability and the weight to be afforded to general deterrence. Additionally, the court needed to determine whether the trial judge had appropriately emphasised the importance of rehabilitation in sentencing the defendant. The court was required to assess whether these errors were significant enough to warrant a re-sentencing of the defendant.

The Court of Appeal found that the trial judge had indeed erred in not adequately considering the defendant's youth when assessing both moral culpability and the weight to be afforded to general deterrence. The court emphasised that a young age and a disadvantaged background should have been given greater weight in these assessments. Furthermore, the court noted that the trial judge had failed to sufficiently emphasise the importance of rehabilitation, a critical consideration in sentencing a young offender. Given these errors, the Court of Appeal determined that the sentence imposed was manifestly excessive and ordered a re-sentencing of the defendant.

The Court of Appeal quashed the original sentence and remitted the matter to the trial court for re-sentencing, with the instruction that the trial judge consider the principles of sentencing for young offenders, including the reduced moral culpability due to youth and the diminished need for general deterrence, as well as the strong evidence of rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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