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TMTW v The Queen

TMTW v The Queen

Case [2008] NSWCCA 50 10 March 2008

Appeal

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Unconscionable Conduct

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: TMTW v R [2008] NSWCCA 50

HEARING DATE(S): 29 January 2008

JUDGMENT DATE:
10 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; James J at 2; Simpson J at 3

DECISION: In respect of Counts 1, 2, 3, 5, 6, 7 and 8: (1) Leave to appeal against sentence granted; (2) In each case appeal dismissed;
In respect of Count 4: (1) Leave to appeal granted; (2) Appeal allowed and sentence quashed; (3) In lieu thereof the applicant be sentenced to imprisonment for 3 years and 8 months made up of a non-parole period of 1 year and 8 months commencing on 11 January 2008 and expiring on 10 September 2009, and the balance of term of 2 years, expiring on 10 September 2011.

CATCHWORDS: CRIMINAL LAW – appeal against severity of sentence – series of offences – common assault – assault occasioning actual bodily harm – aggravated indecent assault – malicious wounding – pleas of guilty – whether sentencing judge erred in assessment of culpability, weight given to prior good character, finding of gratuitous cruelty, calculation of non-parole period – whether becoming a “registrable person” is extra curial punishment so as to reduce sentence – indecent assault not committed for sexual gratification does not render the offence less heinous – prior good character does not preclude finding of gratuitous cruelty – starting point of sentence beyond maximum applicable – non-parole period properly determined given overall criminality

LEGISLATION CITED: Child Protection (Offenders Registration) Act 2000
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398
R v Fahda (Court of Criminal Appeal, 31 August 1999, unreported)
R v Glen (Court of Criminal Appeal, 19 December 1994, unreported)
R v KNL [2005] NSWCCA 260; 154 A Crim R 268
R v Pearce [1998] HCA 57; 194 CLR 610
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: TMTW (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/5203

COUNSEL: T Game SC (Applicant)
L Lamprati SC (Respondent)

SOLICITORS: S O'Connor - Legal Aid Commission (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/1140

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 11 August 2006

CCA 2006/5203

McCLELLAN CJ at CL
JAMES J
SIMPSON J
10 March 2008

TMTW v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 JAMES J: I agree with Simpson J.

3 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 20 October 2006 by Knight DCJ following his pleas of guilty to a series of offences, all committed on 10 March 2006, and all committed against the same victim, who was the applicant’s 10 year…

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 TMTW v The Queen

Details

AGLC: TMTW v The Queen [2008] NSWCCA 50
Case: [2008] NSWCCA 50
Decision Date: 10 March 2008

CaseChat Overview and Summary

The appeal in this case involved the appellant, TMTW, against the severity of a sentence imposed by the lower court. TMTW was found guilty of a series of offences including common assault, assault occasioning actual bodily harm, aggravated indecent assault, and malicious wounding. The appellant had entered guilty pleas to all charges. The appeal centred on whether the sentencing judge had erred in various aspects of the sentence assessment, including the appellant's culpability, the weight given to prior good character, the finding of gratuitous cruelty, and the calculation of the non-parole period.

The court considered several key legal issues. Firstly, it examined whether the sentencing judge erred in assessing the appellant's culpability. The court found that while TMTW had a prior good character, this did not preclude the finding of gratuitous cruelty in the context of the offences committed. Secondly, the court addressed whether becoming a "registrable person" constituted extra curial punishment, which could potentially reduce the sentence. The court ruled that this did not apply in this instance. Additionally, the court scrutinised whether the indecent assault, which was not committed for sexual gratification, rendered the offence less heinous. The court determined that it did not, as the nature and impact of the offence remained severe. Finally, the court assessed whether the starting point of the sentence was beyond the maximum applicable and whether the non-parole period was properly determined.

The court held that the sentencing judge had not erred in assessing the appellant's culpability or in finding gratuitous cruelty, despite the appellant's prior good character. The court also confirmed that the starting point of the sentence was correctly beyond the maximum applicable and that the non-parole period was properly determined, taking into account the overall criminality of the offences. Therefore, the appeal was dismissed, and the original sentence remained in place.

Orders