TM v R

Case [2018] NSWCCA 88 11 May 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TM v R [2018] NSWCCA 88
Hearing dates: 2 May 2018
Date of orders: 11 May 2018
Decision date: 11 May 2018
Before: Hoeben CJ at CL at [1];
Walton J at [81];
R A Hulme J at [82]
Decision:
(1)   An extension of time within which to bring the application for leave to appeal against sentence is granted.
(2)   Leave to appeal against sentence is granted.
(3)   The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – filming private acts without consent in circumstances of aggravation – 10 counts with 14 counts on a Form 1 – offences committed over a 7 year period – 8 victims – victims aged generally between 14 and 16 – covert filming of young girls showering, changing and toileting – significant breach of trust – fact that offending could have been more serious not a matter of mitigation – sentence not manifestly excessive – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 91G(1)(a), 91G(2)(a), 91K(3), 91L(3), 61M(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A(2)(m), 33
Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111
Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372; 219 A Crim R 369
Baines v R [2016] NSWCCA 132
Bamblett v R [2013] NSWCCA 161
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Elsaj v R [2017] NSWCCA 124
Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
Faehringer v R [2017] NSWCCA 248
Greenwood v Regina [2014] NSWCCA 64
Hoskins v R [2015] NSWCCA 245
Hughes v R [2018] NSWCCA 2
Mammone v R [2013] NSWCCA 95
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mills v R [2017] NSWCCA 87
Obeid v R [2017] NSWCCA 221
Pearce v The Queen [1998] HCA 57; 194 CLR 610
PG v R [2017] NSWCCA 179
R v CTG [2017] NSWCCA 163
R v Cahill [2015] NSWCCA 53
R v Van Ryn [2016] NSWCCA 1
Saddler v R [2009] NSWCCA 83; 194 A Crim R 452
Vaiusu v R [2017] NSWCCA 71
Category: Principal judgment
Parties: TM – Applicant
Regina – Respondent Crown
Representation:
Counsel:
S Kluss – Applicant
NJ Adams – Respondent Crown
Solicitors:
Ross Hill & Associate – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2016/018443
Publication restriction: Non-publication order re the identity of the complainants.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 June 2017

Before:

Frearson SC DCJ

File Number(s):

2016/018443

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the Local Court to the following charges:

Four counts of filming a person in a private act without consent in circumstances of aggravation, contrary…

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 TM v R

Details

AGLC: TM v The Queen [2018] NSWCCA 88
Case: [2018] NSWCCA 88
Decision Date: 11 May 2018

CaseChat Overview and Summary

In the matter of TM v R, the appellant challenged the sentence imposed for filming private acts without consent, involving multiple victims over a period of seven years. The appellant was found guilty on 10 counts of the offence and pleaded guilty to 14 further counts on a Form 1. The victims were aged between 14 and 16 years, and the recordings captured the girls in various states of undress, including while showering, changing, and using the toilet. The appellant appealed the sentence, arguing that it was manifestly excessive.

The legal issues before the court were whether the sentence was manifestly excessive and whether the severity of the offending warranted a more lenient sentence. The court was required to consider the nature and extent of the offending, the breach of trust, and the impact on the victims. The appellant argued that the fact that the offending could have been more serious should be considered as a mitigating factor, but the prosecution contended that the severity of the breach of trust and the harm caused to the victims warranted a significant sentence.

The court found that the appellant's offending involved a significant breach of trust, with the victims being vulnerable young girls. The court held that the fact that the offending could have been more serious was not a matter of mitigation, as the appellant had intentionally filmed the victims in highly private moments. The court further determined that the sentence was not manifestly excessive, given the nature and extent of the offending, and the impact on the victims. The appeal was dismissed, and the original sentence was upheld.

The court's final orders were that the appeal was dismissed, and the original sentence imposed by the trial judge was confirmed. The appellant was required to comply with the conditions of the sentence, including any parole or supervision orders.

Orders