TT v R

Case [2014] NSWCCA 206 3 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: TT v R [2014] NSWCCA 206
Hearing dates: 8 September 2014
Decision date: 03 October 2014
Before: Macfarlan JA at [1];
Fullerton J at [2];
Hamill J at [3].
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - SENTENCE - appeal - accessory after the fact to manslaughter - worst case - manifest excess - factors relevant to objective gravity - assessment of objective gravity - no error established
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Kaminic v R [2014] NSWCCA 116
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pearce v The Queen (1998) 194 CLR 610
R v Cowen [2008] NSWSC 104
R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408
R v Engert (1995) 84 A Crim R 67
R v Faulkner [2000] NSWSC 944
R v Galea, R v Yeo [2000] NSWSC 301
R v Israil [2002] NSWCCA 255
R v Johnson [2014] NSWSC 1254
R v Quach [2002] NSWSC 1205
R v Walsh, R v Sharp [2004] NSWSC 111
Category: Principal judgment
Parties: TT (Applicant)
Crown (Respondent)
Representation: Counsel:
J Trevallion (Applicant)
N Williams (Respondent)
Solicitors:
Kernaghan & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/70428
Publication restriction: Suppression of name
Decision under appeal

Date of Decision:

2013-10-04 00:00:00

Before:

Conlon SC DCJ

File Number(s):

2011/70428

Judgment

MACFARLAN JA: I agree with Hamill J.

FULLERTON J: I agree with Hamill J.

HAMILL J: This is an application for leave to appeal against a sentence imposed in the District Court by his Honour Judge Conlon on 4 October 2013. The applicant was convicted after trial in relation to one offence of being an accessory after the fact to manslaughter. That is an offence contrary to s 350 of the Crimes Act1900 (NSW) and carries a maximum penalty of 5 years imprisonment.

The Judge imposed a sentence of four years with a non-parole period of three years.

The grounds of appeal are as follows:

(1) His Honour erred by overstating the objective seriousness of the offence.

(2) His Honour erred by understating the subjective case-namely the diagnosis of major depressive illness which was before the court.

(3) His Honour erred in declining to make a finding of special circumstances.

(4) The sentence was manifestly excessive.

In oral argument counsel for the applicant, who did not draft and sign the written submissions, said that other grounds were "related to ground one" and "turn on whether or not ground one is successful". I do not understand the basis of this concession, and I will deal with the other grounds briefly by reference to the way they were argued in the written submissions.

The first ground 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 TT v R

Details

AGLC: TT v R [2014] NSWCCA 206
Case: [2014] NSWCCA 206
Decision Date: 03 October 2014

CaseChat Overview and Summary

The appellant, TT, appealed against the sentence imposed for being an accessory after the fact to manslaughter. The case was heard in the High Court of Australia, which was tasked with determining whether the sentence was manifestly excessive and whether the sentencing judge had erred in assessing the objective gravity of the offence. The appellant submitted that the sentence was manifestly excessive and that the sentencing judge had failed to properly consider factors relevant to the objective gravity of the offence.

The central legal issues were whether the sentence was manifestly excessive, and if the sentencing judge had made an error in assessing the objective gravity of the offence. The court examined the sentencing principles outlined in the relevant legislation and case law, and considered whether the sentence imposed was disproportionate to the crime committed. The court also assessed whether the sentencing judge had erred in their consideration of the factors relevant to the objective gravity of the offence.

The High Court found that the sentence was not manifestly excessive and that there was no error in the assessment of the objective gravity of the offence. The court held that the sentencing judge had appropriately considered the relevant factors and had not erred in their assessment. The court concluded that the sentence was proportionate to the offence committed and that no manifest excess was established. The appeal was therefore dismissed.

The High Court made no orders regarding the final orders of the case, as the appeal was dismissed. The Court found no error in the original sentencing and thus upheld the sentence imposed by the lower court.

Orders