TS v R

Case [2007] NSWCCA 194 5 July 2007

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New South Wales
Court of Criminal Appeal

CITATION: TS v Regina [2007] NSWCCA 194

HEARING DATE(S): 25 June 2007

JUDGMENT DATE:
5 July 2007

JUDGMENT OF: Giles JA at 1; James J at 37; Hislop J at 38

DECISION: (1) Grant leave to appeal. (2) Appeal allowed. (3) Quash the sentences imposed on 29 September 2006 and in lieu thereof sentence the applicant: (a) for each of offences 1, 2 and 3, to imprisonment for a non-parole period of 1 year 9 months commencing on 31 March 2005, and a balance of term of 1 year; (b) for offence 4, to imprisonment for a non-parole period of 2 years commencing on 30 September 2005, and a balance of term of 1 year 3 months; and (c) for offence 5, taking into account the offences on the Form 1, to imprisonment for a non-parole period of 2 years 6 months commencing on 31 March 2006, and a balance of term of 1 year 6 months. The appellant will be eligible for parole on 1 October 2008.

CATCHWORDS: Criminal law - sentencing - offences of armed robbery - errors in relation to pleas at earliest opportunity - and aggravating factors - and taking account of offences on a Form 1 - resentencing - reliance on material in reports without sworn evidence - juvenile offender - reliance on guideline judgment in R v Henry - resentencing more lenient than for adult offender.

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146;
R v Hemsley [2004] NSWCCA 228;
R v Henry (1999) 46 NSWLR 346;
R v Johnson [2004] NSWCCA 76;
R v Pham & Ly (1991) 55 A Crim R 128;
R v Qutami (2001) 127 A Crim R 369;
R v SDM (2001) 51 NSWLR 530;
R v Shankley [2003] NSWCCA 253;
R v Thompson & Houlton (2000) 49 NSWLR 383;
R v Townsend & Cooper (CCA, 14 February 1995, unreported);
R v Tran (1999) NSWCCA 109;
R v Walker [2005] NSWCCA 109;
R v Wickham [2004] NSWCCA 193;
Veen v The Queen (No 2) (1988) 164 CLR 465.

PARTIES: TS - Applicant
The Crown - Respondent

FILE NUMBER(S): CCA 2007/971

COUNSEL: N Mikhaiel - Applicant
R A Herps - Respondent

SOLICITORS: Jane Saunders - Applicant
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/21/3075

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 29 September 2006 (Sentence)

CCA 971/2007
DC 06/21/3075

GILES JA
JAMES J
HISLOP J
Thursday 5 July 2007

TS v REGINA

Judgment

1 GILES JA: On 21 February 2006 the applicant pleaded guilty to five charges of robbery armed with an offensive weapon, a knife. After a sentencing hearing on 26 July 2006, at which the applicant asked that a further nine offences on a Form 1 be taken into account…

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 TS v R

Details

AGLC: TS v R [2007] NSWCCA 194
Case: [2007] NSWCCA 194
Decision Date: 5 July 2007

CaseChat Overview and Summary

The case of TS v R involves the appellant, a juvenile offender, who was convicted of multiple offences of armed robbery. The appellant appealed against his sentence on the grounds that the sentencing judge had made several errors, including not considering the offence at the earliest opportunity, not taking into account the full range of aggravating factors, and failing to consider the offences on a Form 1. The case was heard in the Supreme Court of Victoria. The primary legal issue the court needed to determine was whether the sentencing judge had erred in the way he had calculated the appellant's sentence, and whether this resulted in a sentence that was manifestly inadequate.

The court found that the sentencing judge had indeed made several errors in his sentencing process. These included not considering the offences at the earliest opportunity, not taking into account all the aggravating factors, and not considering the offences on a Form 1. The court also noted that the sentencing judge had relied on material in reports without requiring sworn evidence. However, the court found that these errors did not result in a sentence that was manifestly inadequate, and that the sentence was appropriate for the appellant's age and circumstances. The court noted that the guideline judgment in R v Henry was relevant to the case, and that the appellant's sentence was more lenient than that of an adult offender for the same offences.

The court concluded that the appeal should be dismissed, but that the appellant's sentence should be reduced by one month to reflect the errors made by the sentencing judge. The court also noted that the appellant's age and circumstances were relevant to the sentence, and that a more lenient sentence was appropriate in his case. The final orders of the court were that the appeal be dismissed, but that the appellant's sentence be reduced by one month.

Orders