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Tohifolau v The Queen

Tohifolau v The Queen

Case [2018] NSWCCA 283 7 December 2018

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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 241
Texts Cited: N/A
Category: Principal judgment
Parties: Richard Tohifolau (Applicant)
Regina (Respondent)
Representation:
Counsel:
B Hancock (Applicant)
M England (Respondent)
Solicitors:
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

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.

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.

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.
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…

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 Tohifolau v The Queen

Details

AGLC: Tohifolau v The Queen [2018] NSWCCA 283
Case: [2018] NSWCCA 283
Decision Date: 07 December 2018

CaseChat Overview and Summary

The case of Tohifolau v The Queen was heard in the Supreme Court of New South Wales, Court of Criminal Appeal. The applicant, Tohifolau, appealed against his sentence for causing grievous bodily harm with intent, contrary to section 33(1)(b) of the Crimes Act 1900 (NSW). The incident occurred in a prison setting where Tohifolau assaulted a fellow inmate. Tohifolau entered a late guilty plea, resulting in a 5% discount on his sentence. The sentencing judge imposed a head sentence of 12 years and 4 months imprisonment, with a non-parole period of 9 years.

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