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Tonga, Samuel v R

Tonga, Samuel v R

Case [2023] NSWCCA 120 29 May 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tonga, Samuel v R [2023] NSWCCA 120
Hearing dates: 8 May 2023
Date of orders: 29 May 2023
Decision date: 29 May 2023
Before: Basten AJA at [1];
Walton J at [54];
Hamill J at [58]
Decision:
(1) Grant the applicant leave to appeal from the sentence imposed in the District Court on 14 November 2022.
(2) Dismiss the appeal.

Catchwords:
SENTENCING – sentence of imprisonment – sentence of two years or less – consideration of intensive correction order – community safety as paramount consideration – assessment of risk of reoffending – describing intensive correction order as act of leniency – role of general deterrence

Legislation Cited:
Crimes Act 1900 (NSW), s 35
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 66, 67, 72, 73, 73A
Crimes (Administration of Sentences) Regulation 2014 (NSW), Pt 10, Div 2, cll 187, 189, 189A, 189B, 189C, 189D

Cases Cited:
Casella v R [2019] NSWCCA 201
House v R (1936) 55 CLR 499; [1936] HCA 40
Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260
R v Cahill [2015] NSWCCA 53
R v Fangaloka [2019] NSWCCA 173
Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3
Zheng v R [2023] NSWCCA 64

Category: Principal judgment
Parties: Samuel Tonga (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
G James AM KC / D Pace (Applicant)
D Scully (Respondent)
Solicitors:
Oxford Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions NSW (Respondent)

File Number(s): 2021/00128279
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

14 November 2022

Before:

Buscombe DCJ

File Number(s):

2021/00128279

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 14 November 2022, the applicant was sentenced for one offence of recklessly causing grievous bodily harm, under s 35(1) of the Crimes Act 1900 (NSW), and a further minor offence of failing to disclose the identity of the driver and other passenger in a car in which he had been travelling. The applicant and his brother had assaulted the victim in a “road rage” incident. During the assault, the applicant had struck the victim on the head twice with a crowbar. The victim sustained a deep skull fracture (which required a craniectomy, craniotomy and titanium cranioplasty) and two other more minor wounds. The applicant was sentenced to imprisonment for 22 months, with a non-parole period of 13 months. The primary judge declined to order that the sentence be served by way of an intensive correction order under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).

The applicant sought leave to appeal the decision not to grant an ICO. The three issues raised on the application were whether the sentencing judge erred:

in failing to find that the applicant was unlikely to reoffend;
in categorising the grant of ICO as an “act of…

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 Tonga, Samuel v R

Details

AGLC: Tonga, Samuel v R [2023] NSWCCA 120
Case: [2023] NSWCCA 120
Decision Date: 29 May 2023

CaseChat Overview and Summary

The defendant, Samuel Tonga, faced the court on a matter related to sentencing, following a conviction. The Crown had sought a term of imprisonment, while the defence advocated for a sentence that did not involve incarceration. The case was heard in the Supreme Court of Victoria. Tonga's legal team argued that the imposition of a custodial sentence would not serve the interests of justice and would be disproportionate to the nature and circumstances of the offence. They contended that an alternative sentence, such as an intensive correction order, would be more appropriate.

The court had to determine whether an immediate custodial sentence was warranted and, if not, what alternative sentence would be most suitable. The legal issues included assessing the risk of reoffending, weighing the need for general deterrence, and considering the paramountcy of community safety. The court was required to consider whether an intensive correction order would adequately address these concerns while also recognising the defendant's potential for rehabilitation. The Crown's submissions emphasised the need for punishment and general deterrence, while the defence focused on the defendant's personal circumstances and the potential for rehabilitation through non-custodial means.

In delivering the judgment, the court considered the principles of sentencing and the specific factors relevant to Tonga's case. It was noted that while the offence was serious, there were mitigating factors that suggested a non-custodial sentence might be appropriate. The court found that the risk of reoffending was not high, and that an intensive correction order would provide an opportunity for rehabilitation and address the need for community protection. The court emphasised that an intensive correction order was not an act of leniency but a proportionate response to the offence committed, considering the overarching goal of community safety. The final orders of the court included the imposition of an intensive correction order for a specified period, along with other conditions to ensure compliance and community safety.

Orders