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Tuite v R

Tuite v R

Case [2018] NSWCCA 175 10 August 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tuite v R [2018] NSWCCA 175
Hearing dates: 18 July 2018
Date of orders: 10 August 2018
Decision date: 10 August 2018
Before: Hoeben CJ at CL at [1];
R A Hulme J at [109];
Button J at [120]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – four counts of aggravated break enter and steal, one count of specially aggravated detain for advantage and one count of aggravated enter dwelling with intent – whether sentence manifestly excessive – young offender – dysfunctional background – whether totality principle properly applied – likelihood of institutionalisation – whether sentence properly characterised as “crushing” – all relevant principles applied by sentencing judge – challenge essentially to exercise of sentencing discretion – no House v R [1936] HCA 40; 55 CLR 499 error disclosed – leave to appeal granted but appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 86(2), 86(3), 109(2), 111(2),112(2), 117
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Chamseddine v R [2017] NSWCCA 176
Clinton v R [2014] NSWCCA 320
Dang v R [2014] NSWCCA 47
Fajloun and Fajloun v R [2011] NSWCCA 41
Haines v R [2012] NSWCCA 238
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505
Hughes v R [2015] NSWCCA 330; (2015) 93 NSWLR 474
Hughes v R [2018] NSWCCA 2
JM v R [2014] NSWCCA 297
JT v R [2012] NSWCCA 133
Kresovic v R [2018] NSWCCA 37
KT v R [2008] NSWCCA 51; 182 A Crim R 571
Ma v R; Pham v R [2007] NSWCCA 240
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Engert [1995] 84 A Crim R 67
R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Meatuai [2016] NSWCCA 42
RG v R [2017] NSWCCA 60
Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
Vandeventer v R [2013] NSWCCA 33
Yang v R [2012] NSWCCA
ZA v R [2017] NSWCCA 132
Category: Principal judgment
Parties: Michael Tuite – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr H White – Applicant
Mr F Veltro – Respondent Crown
Solicitors:
J Krajcik – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/075986;2013/076001;2013/136192
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2018] NSWCCA 175

Date of Decision:

26 February 2016

Before:

Arnott SC DCJ

File Number(s):

2013/075986;
2013/076001;
2013/136192

Judgment

HOEBEN CJ at…

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 Tuite v R

Details

AGLC: Tuite v R [2018] NSWCCA 175
Case: [2018] NSWCCA 175
Decision Date: 10 August 2018

CaseChat Overview and Summary

The case of Tuite v R involved the appellant, Tuite, appealing against his sentence for various criminal offences, including multiple counts of aggravated break and enter and steal, a count of specially aggravated detain for advantage, and an aggravated enter dwelling with intent. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive, particularly considering Tuite's young age and his dysfunctional background which contributed to his criminal behaviour. Another key consideration was whether the totality principle was appropriately applied in sentencing, and whether the likelihood of Tuite being institutionalised should have been a mitigating factor.

The court examined the sentencing judge's application of the relevant principles in imposing the sentence. It was noted that the sentencing judge had taken into account all relevant factors, including Tuite's age, his dysfunctional background, and the totality principle. The court found that the sentencing judge had correctly identified that the totality principle should be applied, ensuring that the aggregate sentence was proportionate to the overall criminal conduct. The court also considered whether the sentence could be characterised as "crushing," but concluded that all relevant principles had been applied, and that the challenge to the sentence was essentially a disagreement with the exercise of sentencing discretion.

In dismissing the appeal, the court held that the sentencing judge had not made any error in the application of sentencing principles, and there was no basis to find that the sentence was manifestly excessive. The court emphasised that while the sentence was severe, it was within the range of appropriate sentences for the offences committed. The court found no grounds to interfere with the sentence imposed, despite the leave to appeal being granted.

The final orders of the court were to dismiss the appeal, affirming the sentence imposed by the sentencing judge. The court's decision underscored the importance of respecting the sentencing judge's discretion, particularly in cases involving complex factors such as the defendant's background and the totality principle.

Orders