Tuesley v The Queen - [2021] NSWCCA 58

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:
K Averre (Applicant)
M Kumar (Respondent)
Solicitors:
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…

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 Tuesley v The Queen

Details

AGLC: Tuesley v The Queen [2021] NSWCCA 58
Case: [2021] NSWCCA 58
Decision Date: 07 April 2021

CaseChat Overview and Summary

The case of Tuesley v The Queen involved the appellant who had pleaded guilty to six offences, two indictable offences of assaulting a police officer under section 60(2) and four summary offences of possessing a prohibited drug. The sentencing judge imposed an aggregate sentence, and the appellant appealed, arguing that the sentencing judge erred in declining to fix a non-parole period. The appellant also claimed that the judge took into account irrelevant considerations and failed to consider relevant ones, particularly the absence of advice regarding the standard non-parole period for the s 60(2) offence. Additionally, the appellant argued there was an error in not indicating a non-parole period for the indicative sentence of the s 60(2) offence.

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