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Tuivaga v R

Tuivaga v R

Case [2015] NSWCCA 145 17 June 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tuivaga v R [2015] NSWCCA 145
Hearing dates: 1 May 2015
Decision date: 17 June 2015
Before: Hoeben CJ at CL at [1]
R A Hulme J at [63]
Wilson J at [64]
Decision:
(1)Leave to appeal against sentence granted.
(2)Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – manslaughter – applicant part of a group who attacked victim – death caused by a firearm, the presence of which was unknown to the applicant – relationship between sentence imposed for manslaughter and pre-sentence custody – principle of totality – whether error of fact on part of sentencing judge – whether finding of special circumstances reflected in sentence – whether sentence manifestly excessive – application of parity principle – appeal dismissed.
Cases Cited: Corda v R [2014] NSWCCA 281
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
England v R; Phanith v R [2009] NSWCCA 274
House v R [1936] HCA 40; 55 CLR 499
Jimmy v R [2010] NSWCCA 60; 269 ALR 115
Mammone v R [2013] NSWCCA 95
Postiglione v R [1997] HCA 26; 189 CLR 295
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Tuivaga [2013] NSWSC 1626
Stoeski v R [2014] NSWCCA 161
Tan v R [2014] NSWCCA 96
Category: Principal judgment
Parties: Kirk Daniel Tuivaga – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Ms H Cox – Applicant
Ms T Smith – Respondent Crown
Solicitors:
Nabilah Reza – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2010/341540
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Tuivaga [2013] NSWSC 1626

Date of Decision:

11 November 2013

Before:

Price J

File Number(s):

2010/341540

Judgment

HOEBEN CJ at CL:

OFFENCE AND SENTENCE

The applicant pleaded guilty in the Supreme Court to manslaughter the day before his trial was fixed to commence for the murder of Wallace Ruiz-Sanchez. The Crown accepted the plea to manslaughter in full satisfaction of the indictment. The maximum penalty for this offence is imprisonment for 25 years. There is no standard non-parole period.

On 11 November 2013 Price J sentenced the applicant to imprisonment with a non-parole period of 4 years and 6 months, to date from 15 June 2013 and to expire 14 December 2017, with an additional term of 2 years and 23 days to expire on 6 January 2020.
The applicant seeks leave to appeal from that sentence on the following grounds:

Ground 1 – His Honour erred in the application of the principles of totality.

Ground 2 – His Honour erred in inadequately reducing the non-parole period to reflect the finding of special circumstances.

Ground 3 – The applicant has a legitimate sense of grievance when comparing his sentence with that of his co-offender, Barnes.

Ground 4 – The sentence imposed is manifestly excessive.

FACTUAL BACKGROUND

On 12…

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 Tuivaga v R

Details

AGLC: Tuivaga v R [2015] NSWCCA 145
Case: [2015] NSWCCA 145
Decision Date: 17 June 2015

CaseChat Overview and Summary

The case of Tuivaga v R involved an appeal against the sentence imposed for manslaughter by the Supreme Court of Victoria. The applicant, Tuivaga, was part of a group that attacked the victim, leading to the victim's death caused by a firearm, the presence of which was unknown to Tuivaga. The applicant argued that the sentence was excessive and did not adequately reflect the principle of totality or the special circumstances of the case.

The central legal issues revolved around whether the sentencing judge had made an error of fact, whether the special circumstances identified were adequately reflected in the sentence, and if the sentence was manifestly excessive. The applicant also contended that the parity principle should have been applied, arguing that similar cases resulted in lesser sentences. The court was required to determine whether the sentence imposed was appropriate in the context of the crime and the circumstances.

The Court of Appeal found that there was no error of fact on the part of the sentencing judge. The sentence imposed was consistent with the gravity of the offence and the need to deter similar conduct in the future. The court held that the sentence reflected the special circumstances and was not manifestly excessive. Furthermore, the court found that the principle of totality had been considered appropriately, and the parity principle did not apply in this instance. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the Supreme Court of Victoria was to stand. The Court of Appeal confirmed that the sentence was just and appropriate, taking into account all relevant factors and principles of sentencing.

Orders