Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Tuesley v R [2021] NSWCCA 58 Hearing dates: 20 November 2020 Date of orders: 7 April 2021 Decision date: 07 April 2021 Before: Hoeben CJ at CL at [1]
Davies J at [2]
Fagan J at [76]Decision: 1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords: CRIME – appeals – appeal against sentence – applicant pleaded guilty to six offences – two indictable offences of assaulting a police officer one contrary to s 60(2) – four summary offences of possessing a prohibited drug – aggregate sentence imposed - whether sentencing judge erred in declining to fix a non-parole period – whether sentencing judge took into account irrelevant considerations and did not take into account relevant considerations – where sentencing judge not advised that s 60(2) offence carried a standard non-parole period - whether error in not indicating a non-parole period for indicative sentence for s 60(2) offence – where any error would have had no effect on the aggregate sentence – whether sentence was manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW) ss 58, 60
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 44, 45, 54A, 54B
Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 (NSW)
Cases Cited: Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Convery v R [2014] NSWCCA 93
R v Dunn [2004] NSWCCA 346
See v R [2020] NSWCCA 272
Waterstone v R [2020] NSWCCA 117
Texts Cited: Nil
Category: Principal judgment Parties: Anthony Edward Tuesley (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
K Averre (Applicant)
M Kumar (Respondent)
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2019/249056 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Citation:
Nil
- Date of Decision:
- 6 April 2020
- Before:
- McLennan SC DCJ
- File Number(s):
- 2019/249056
Judgment
-
HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
-
DAVIES J: The applicant pleaded guilty in the Local Court to six offences. There were two indictable offences in respect of which he was committed for sentence, and there were four summary offences on a s 166 certificate. The two indictable offences were these:
Count 1: Assault police officer in the execution of his duty occasioning actual bodily harm, contrary to s 60(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 7 years’ imprisonment, and there is a standard non parole period (SNPP) of 3 years.
Count 2: Assault police officer in the execution of his duty, contrary to s 58 of the Crimes Act. The maximum penalty for this offence is 5 years’ imprisonment.
-
The four offences on the s 166 certificate were all offences of possessing a prohibited drug. The drugs respectively were 27.2 grams of cannabis, 3.95 grams of cannabis resin, 10.51 grams of buprenorphine strips, and 4.2 grams of cannabis seed. The maximum penalty for each of these offences was 2 years’ imprisonment, and/or a fine of…
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- AGLC
- Tuesley v The Queen [2021] NSWCCA 58
- Case
- [2021] NSWCCA 58
- Decision Date
CaseChat Overview and Summary
The court examined whether any errors in the sentencing process affected the aggregate sentence. The court found that any error in not advising on the standard non-parole period or not indicating a non-parole period for the indicative sentence of the s 60(2) offence did not impact the aggregate sentence. The court concluded that the sentencing judge had not erred in the imposition of the sentence and that the sentence was not manifestly excessive. The court rejected the appeal, affirming that the aggregate sentence was appropriate and did not result from any procedural errors.
The court further held that the sentencing judge had considered relevant factors in determining the sentence and had not taken into account irrelevant considerations. The court found no basis for the appeal on the grounds of the sentence being manifestly excessive or due to procedural errors in the sentencing process. The appeal was dismissed, and the original sentence stood affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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