TP v R - [2018] NSWCCA 140

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TP v R [2018] NSWCCA 140
Hearing dates: 8 June 2018
Date of orders: 16 July 2018
Decision date: 16 July 2018
Before: White JA at [1]
Bellew J at [2]
Wilson J at [30]
Decision:
(1) Leave to appeal granted.
(2) Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW – Sentence – Appeal – Sexual offending – Where applicant was the father of the victim – Where the offending occurred in home environment where victim entitled to feel safe – Multiplicity of offences – Offending accompanied by reassurances on the part of the applicant to the victim that the acts constituting the offending were appropriate – Limited significance of short duration of offending – Necessity for general deterrence – Necessity to balance an offender’s subjective case against the objective seriousness of the offending – Sentence not manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Croxon v R [2017] NSWCCA 213
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Doe v R [2013] NSWCCA 248
Kearsley v R [2017] NSWCCA 28
R v Dodd (1991) 57 A Crim R 349
R v Freedman [2017] NSWCCA 201
R v Van Ryn [2016] NSWCCA 1
Simpson v R [2014] NSWCCA 23
Vaiusu v R [2017] NSWCCA 71
Category: Principal judgment
Parties: TP – Applicant
Regina – Respondent
Representation:
Counsel:
G D Woods QC and T Woods – Applicant
F Veltro – Respondent
Solicitors:
Nazarian Lawyers – Applicant
C Hyland, Solicitor for Public Prosecutions NSW – Respondent

File Number(s): 2015/184151
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 May 2017

Before:

Her Honour Judge Bright

Judgment

WHITE JA: I agree with Bellew J.
BELLEW J: Following a trial in the District Court of New South Wales, TP (“the applicant”) was found guilty by a jury of the following offences:

that on 26 December 2014 at Branxton in the State of New South Wales, he assaulted (SP) and at the time of such assault committed an act of indecency on (SP), a child then under the age of 16 years, namely 14 years.

that on 26 December 2014, at Branxton in the State of New South Wales, he assaulted (SP) and at the time of such assault committed an act of indecency on (SP), a child then under the age of 16 years, namely 14 years.

that on 26 December 2014, at Branxton in the State of New South Wales, he had sexual intercourse with (SP), without the consent of (SP), knowing she was not consenting, in circumstances of aggravation, namely that (SP) was under the age of 16 years, namely 14 years.

that on 26 December 2014, at Branxton in the State of New South Wales, he assaulted (SP) and at the time of such assault committed an act of indecency on (SP), a…

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 TP v R

Details

AGLC: TP v R [2018] NSWCCA 140
Case: [2018] NSWCCA 140
Decision Date: 16 July 2018

CaseChat Overview and Summary

The case of TP v R involved an appeal against the sentencing of the applicant, TP, who was convicted of multiple sexual offences against his daughter. The dispute centred on the appropriateness of the sentence imposed by the lower court, considering the unique circumstances of the case, including the familial relationship between the offender and the victim and the environment in which the offences occurred. The appeal was heard by the relevant appellate court.

The primary legal issues before the court were whether the sentence was manifestly excessive and whether the court had appropriately balanced the subjective circumstances of the applicant with the objective seriousness of the offending. The court had to consider the impact of the offences on the victim, the environment in which they occurred, and the need for general deterrence. Furthermore, the court needed to assess the significance of the short duration of the offending and the reassurances provided by the applicant to the victim.

In delivering its judgment, the court found that the sentence was not manifestly excessive. It recognised the gravity of the offences and the breach of trust inherent in the familial relationship. The court held that while the duration of the offending was short, its impact was significant, and the reassurances provided by the applicant exacerbated the harm. The court emphasised the importance of general deterrence and the need to protect the victim, who was entitled to feel safe in her own home. In balancing the applicant's subjective circumstances against the objective seriousness of the offending, the court determined that the sentence imposed was appropriate and proportionate to the crimes committed.

The final orders of the court were to dismiss the appeal, thereby upholding the sentence imposed by the lower court. The court's decision affirmed the need to consider both the subjective and objective aspects of criminal sentencing, particularly in cases involving familial sexual offences.

Orders