Tu v The Queen - [2014] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TU v R [2014] NSWCCA 155
Hearing dates: 28 July 2014
Decision date: 15 August 2014
Before: Hoeben CJ at CL at [1]
Beech-Jones J at [2]
Hamill J at [71]
Decision:
(1) Leave to appeal be granted.
(2) The appeal be dismissed.

Catchwords: CRIMINAL LAW - appeal - child sexual assault - victim offender's daughter - offences seven years apart - whether sentencing judge erred in finding offence not isolated - alleged use of wrong statistics - Ellis discount - alleged failure to consider rehabilitation and remorse - error demonstrated - no lesser sentence warranted in law.
Legislation Cited: - Crimes Act 1900 (NSW), s 61N, s 66A, s 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 44, s 54A, s 54D, Pt 3 Div 3
- Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: - Beldon v R [2012] NSWCCA 194
- Elyard v R [2006] NSWCCA 43
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- R v Ellis (1986) 6 NSWLR 603
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Ryan v R [2001] HCA 21; 206 CLR 267
Category: Principal judgment
Parties: "TU" (Applicant)
Crown (Respondent)
Representation: Counsel:
A. Barrie (Applicant)
L. Babb SC (Respondent)
Solicitors:
George Sten & Co (Applicant)
S. Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/053844
Publication restriction: See [*2*]
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-10-25 00:00:00

Before:

Blackmore DCJ

Judgment

HOEBEN CJ at CL: I agree with Beech-Jones J.

BEECH-JONES J: This is an application for leave to appeal from sentences imposed by the District Court on the applicant for sexually assaulting his daughter. At the outset it should be noted that s 578A(2) of the Crimes Act 1900 (NSW) precludes the publication of any matter which identifies or is likely to lead to the identification of the victim. To avoid the identity of the victim being ascertainable, the electronically available versions of this judgment will refer to the applicant as "TU".

On 25 October 2013 the applicant was convicted of one offence of having sexual intercourse between 1 September 2005 and 11 March 2007 with a person under the age of ten years, contrary to s 66A(1) of the Crimes Act 1900 (the "first offence"). He was also convicted of an offence of having sexual intercourse between 1 December 2012 and 25 December 2012 with a person under the age of ten years in circumstances of aggravation, namely that the victim was under his authority, contrary to s 66A(2) of the Crimes Act 1900 (the "second offence"). The maximum penalty for these offences was 25 years imprisonment and imprisonment for life respectively. For both offences a standard non-parole period of fifteen years has been prescribed (Crimes (Sentencing Procedure) Act 1999 (NSW), the "Sentencing Act", ss 54A to 54D).

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 Tu v The Queen

Details

AGLC: Tu v The Queen [2014] NSWCCA 155
Case: [2014] NSWCCA 155
Decision Date: 15 August 2014

CaseChat Overview and Summary

The appellant, Tu, has appealed against his conviction for child sexual assault, where the victim was his daughter. The appeal was heard in the High Court of Australia. Tu's argument focused on the sentencing judge's decision, claiming that the judge erred by not treating the offence as isolated, using incorrect statistics, improperly applying the Ellis discount, and failing to consider his rehabilitation and remorse. The central legal issues were whether the sentencing judge had made an error in treating the offence as non-isolated, the appropriateness of the statistics used, the correct application of the Ellis discount, and whether the judge had adequately considered the appellant's rehabilitation and remorse.

The court considered that the sentencing judge had indeed erred in not treating the offence as isolated, as the previous assault had occurred seven years earlier and there were no subsequent offences. However, the court found that this error was not sufficient to warrant a different sentence, as the overall penalty was not excessive. Regarding the statistics, while the court acknowledged the use of incorrect figures, it concluded that this did not impact the final sentence. The court also determined that the Ellis discount was applied correctly, and there was no failure to consider the appellant's rehabilitation and remorse. Consequently, the court found that no lesser sentence was warranted in law.

In light of the above, the court dismissed the appeal and affirmed the original sentence. The court held that the sentencing judge's error in treating the offence as non-isolated did not justify altering the penalty, as it was not unduly harsh. The court found that the use of incorrect statistics, the correct application of the Ellis discount, and the consideration of the appellant's rehabilitation and remorse did not lead to an unjust outcome. Therefore, the High Court upheld the original sentence, and no lesser sentence was warranted in law.

Orders