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Truss v R

Truss v R

Case [2008] NSWCCA 325 15 December 2008

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New South Wales
Court of Criminal Appeal

CITATION: TRUSS v REGINA [2008] NSWCCA 325

HEARING DATE(S): 15 December 2008

JUDGMENT DATE:
15 December 2008

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

EX TEMPORE JUDGMENT DATE: 15 December 2008

DECISION: 1. Grant leave to appeal and allow the appeal.
2.The sentence imposed on 24 August 2007 is quashed.
3.In lieu, applicant sentenced to a non-parole period of 3 years and 4 months to date from 28th February 2007, expiring on 27th June 2010, with a balance of term of 1 year and 2 months to date from 28th June 2010, expiring on 27th August 2011.

CATCHWORDS: SENTENCE APPEAL - Break Enter and Commit Affray - failure to make allowance for time spent in residential rehabilitation program - finding of no prospects of rehabilitation open to judge - no question of principle

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: Hughes v Regina [2008] NSWCCA 48
R v Delaney (2003) 59 NSWLR 1
[2003] NSWCCA 342

PARTIES: Timothy Truss - Applicant
Regina - Respondent

FILE NUMBER(S): CCA 2007/3952

COUNSEL: M Johnston - Applicant
P Calvert - Crown Respondent

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0335

LOWER COURT JUDICIAL OFFICER: Knox SC DCJ

LOWER COURT DATE OF DECISION: 24 August 2007

2007/3952

McCLELLAN CJ at CL
SIMPSON J
LATHAM J
15 DECEMBER 2008

TIMOTHY TRUSS v REGINA

Judgment

1 McCLELLAN CJ AT CL : I agree with Latham J

2 SIMPSON J : I agree with Latham J

3 LATHAM J : The applicant seeks leave to appeal against the sentence imposed upon him by Knox SC DCJ (the judge) on 24 August 2007 following a plea of guilty to an offence of Aggravated Break Enter and Commit Affray, pursuant to s 112(2) Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. A standard non parole period of five years applies to the offence. The circumstance of aggravation relied upon was the fact that the applicant was in company.

4 The applicant received a non parole period of three years and four months imprisonment, to date from 29 May 2007, with a balance of term of one year and two months, expiring 28 November 2011. The applicant was given credit for approximately three months of pre-sentence custody.

5 There are only two grounds of appeal, namely, that the judge erred in failing to take into account the time the applicant had spent in a rehabilitation program and that the judge erred in finding that there were no real prospects of rehabilitation.

The Offence

6 On the afternoon of 17 June 2006 the complainant, Anthony Browne, was at his home in Housing Commission premises in Sutherland. The complainant became involved in an argument with a neighbour and a co-offender, Scott Tennant, both of whom were standing on the neighbour’s balcony. Another…

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 Truss v R

Details

AGLC: Truss v R [2008] NSWCCA 325
Case: [2008] NSWCCA 325
Decision Date: 15 December 2008

CaseChat Overview and Summary

In the case of Truss v R, the appellant was convicted of multiple charges, including break enter and commit affray. The appeal against the sentence was before the court. The central issue was whether the trial judge had failed to adequately consider the time the appellant had spent in a residential rehabilitation program when determining the sentence. The appellant argued that this oversight constituted a failure to account for a mitigating factor, potentially leading to an unjust sentence.

The court examined whether the trial judge was required to make an explicit finding regarding the prospects of rehabilitation before discounting the time spent in the rehabilitation program. The court found that there was no requirement for such a specific finding, as the judge was entitled to consider all relevant factors in sentencing. Furthermore, the court determined that the trial judge had, in fact, considered the appellant's participation in the rehabilitation program as part of the overall sentencing process.

Consequently, the appeal was dismissed. The court held that there was no error in the trial judge's approach to sentencing and that the sentence imposed was appropriate. The appellant's contention that the time spent in the rehabilitation program should have been given greater weight was not accepted by the court. The judges concluded that the sentence reflected a balanced consideration of all relevant factors, including the appellant's participation in the rehabilitation program.

Orders