TM v R

Case [2008] NSWCCA 158 14 July 2008

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New South Wales
Court of Criminal Appeal

CITATION: TM v REGINA [2008] NSWCCA 158

HEARING DATE(S): Wednesday 21 May 2008

JUDGMENT DATE:
14 July 2008

JUDGMENT OF: James J at 1; Hoeben J at 2; Hall J at 3

DECISION: (1) Application for leave to appeal granted.
(2) The appeal is allowed, in part.
(3) An order under s.19(1), Children (Criminal Proceedings) Act, that the applicant serve the sentence imposed under orders (5) and (7) below and the sentences imposed by the District Court in respect of Counts 3 and 4 as a juvenile offender.
(4) That the sentence imposed in respect of Count 2 be set aside.
(5) That, in respect of Count 2, the applicant be sentenced to a period of three years and six months commencing on 2 November 2006 and expiring on 1 May 2010 with a balance of term of three years and three months to expire on 1 August 2013.
(6) That the sentence imposed in respect of Count 1 be set aside.
(7) That, in respect of Count 1, the applicant be sentenced to a fixed term of three years and six months commencing 2 November 2006 and expiring 1 May 2010.
(8) That the sentence imposed by the District Court in respect of Counts 3 and 4, and the sentence imposed by this Court in respect of Count 1, be wholly concurrent with the sentence of this Court imposed in respect of Count 2.
(9) Accordingly the date on which the applicant will become eligible for parole will be 1 May 2010.

CATCHWORDS: CRIMINAL LAW – SENTENCING – appeal against severity of sentence – applicant pleaded guilty to four offences under Crimes Act 1900 – offence in midrange of objective seriousness – juvenile offender – immaturity as a significant factor in the commission of the offence – sentence held manifestly excessive

LEGISLATION CITED: Childrens (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: MS2 & Ors v R (2005) 158 A Crim R 93
R v Baker [2000] NSWCCA 85
R v DB; R v DMM (2007) 167 A Crim R 393
R v Hearne (2001) 124 A Crim R 451
R v JLC-H [2004] NSWCCA 70
R v Way (2004) 60 NSWLR 168

PARTIES: TM v
REGINA

FILE NUMBER(S): CCA No 2007/3111

COUNSEL: Crown: N Adams
App: A Francis

SOLICITORS: Crown: S Kavanagh
App: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/1037

LOWER COURT JUDICIAL OFFICER: Christie ADCJ

LOWER COURT DATE OF DECISION: 18 July 2007

2007/3111

JAMES J
HOEBEN J
HALL J
MONDAY 14 JULY 2008

TM v REGINA

Judgment

1 JAMES J: I agree with Hall J.

2 HOEBEN J: I agree with Hall J and the orders which he proposes.

3 HALL J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 18 July 2007 following pleas of guilty to four offences arising from the one…

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 R [2008] NSWCCA 158
Case: [2008] NSWCCA 158
Decision Date: 14 July 2008

CaseChat Overview and Summary

The case involved the applicant, TM, who had appealed against the severity of a sentence imposed on them after they pleaded guilty to four offences under the Crimes Act 1900. The offences included aggravated robbery, assault occasioning actual bodily harm, use of an offensive weapon in the commission of an indictable offence, and deprivation of liberty. The applicant was a juvenile at the time of the offences and had been sentenced to an aggregate of eight years and six months in custody, with a non-parole period of four years and three months. The appeal centred on the severity of the sentence, with the applicant arguing that it was manifestly excessive and failed to take into account mitigating factors, including their age and immaturity.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, having regard to all relevant circumstances, including the objective seriousness of the offences, the need for general deterrence, and the need for any particular deterrence of the applicant. The court was also required to consider the principle of proportionality in sentencing and whether the sentence imposed was appropriate in light of the mitigating factors presented, particularly the applicant's age and immaturity at the time of the offences. Additionally, the court had to determine whether the sentence adequately balanced the interests of the community, the victim, and the applicant.

The court found that the sentence imposed was manifestly excessive. It acknowledged that the offences were in the midrange of objective seriousness, but it emphasised the importance of considering the applicant's age and immaturity as significant mitigating factors. The court held that the sentence failed to adequately reflect the lesser culpability of a juvenile offender and did not sufficiently account for the potential for rehabilitation and reintegration into society. The court concluded that the sentence imposed was disproportionate and did not achieve the objectives of sentencing, particularly in relation to the particular deterrence of the applicant. Consequently, the appeal was allowed, and the sentence was quashed.

The final orders of the court were that the applicant's appeal against the severity of sentence be allowed, and the sentence imposed be quashed. The matter was remitted to the sentencing court for reconsideration of the appropriate sentence, with directions to adequately reflect the mitigating factors, including the applicant's age and immaturity, and to ensure that the sentence achieved the objectives of sentencing, particularly in relation to the particular deterrence of the applicant. The court also directed that the sentencing court consider the principle of proportionality in determining an appropriate sentence.

Orders