Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Tohifolau v R [2018] NSWCCA 283 Hearing dates: 9 November 2018 Date of orders: 09 November 2018 Decision date: 07 December 2018 Before: Basten JA; Schmidt J; Fagan J Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.Catchwords: CRIMINAL LAW – appeal against sentence – causing grievous bodily harm with intent contrary to Crimes Act 1900 (NSW), s 33(1)(b) – assault upon fellow inmate in prison – late guilty plea – 5% discount in sentence for early plea – head sentence of 12 years 4 months imprisonment with non-parole period of 9 years – whether error in ratio of non-parole period to head sentence – whether sentencing judge did not properly consider applicant’s criminal record – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)Cases Cited: AM v R [2012] NSWCCA 203
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hughes v R [2018] NSWCCA 2
R v Jeremiah [2016] NSWCCA 241Texts Cited: N/A Category: Principal judgment Parties: Richard Tohifolau (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
B Hancock (Applicant)
M England (Respondent)
Legal Aid Commission NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2015/270916 Publication restriction: No Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Criminal
- Date of Decision:
- 4 August 2017
- Before:
- Hunt DCJ
- File Number(s):
- 2015/270916
Judgment
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THE COURT: By notice filed 30 July 2018 the applicant sought leave to appeal against the severity of a sentence imposed on him on 4 August 2017 by Hunt DCJ following his plea of guilty to a charge in these terms:
That he on the 1st day of August 2015 at Wellington in the State of New South Wales did cause grievous bodily harm to Robin Irvine with the intent to cause grievous bodily harm to Robin Irvine.
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At the conclusion of the leave hearing in this Court on 9 November 2018 the following orders were made, with reasons reserved:
Leave to appeal granted.
Appeal dismissed.
These are the Court’s reasons for having made those orders.
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The charge was laid under s 33(1)(b) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 25 years and a standard non-parole period of 7 years. At the time of the offence the applicant and the victim were both inmates of Wellington Correctional Centre. In circumstances elaborated in more detail below, the applicant entered the victim’s cell and bashed him so severely as to cause permanent brain damage. The victim will require full-time care for the rest of his life.
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The plea of guilty was entered late, well into the applicant’s judge-alone trial on the charge. His Honour allowed a utilitarian discount of 5%. He imposed a sentence of 12 years and 4 months with a non-parole period of 9 years. The sentence was dated to commence from the…
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- AGLC
- Tohifolau v The Queen [2018] NSWCCA 283
- Case
- [2018] NSWCCA 283
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the ratio of the non-parole period to the head sentence was erroneous, whether the sentencing judge adequately considered Tohifolau's criminal history, and whether the sentence was manifestly excessive. Tohifolau argued that the non-parole period was too short compared to the head sentence and that his criminal record was not properly taken into account. Additionally, he claimed that the sentence was disproportionately severe.
The court considered these arguments and concluded that there was no error in the ratio of the non-parole period to the head sentence. The court also found that the sentencing judge had appropriately considered Tohifolau's criminal record in imposing the sentence. The court further held that the sentence was not manifestly excessive, taking into account the nature and circumstances of the offence and Tohifolau's criminal history. Consequently, the appeal was dismissed despite leave to appeal being granted.
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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