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Tuvunivono v R

Tuvunivono v R

Case [2013] NSWCCA 176 2 August 2013

Notional Non-Parole Period

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tuvunivono v R [2013] NSWCCA 176
Hearing dates: 9 July 2013
Decision date: 02 August 2013
Before: Basten JA at [1];
Price J at [16];
Campbell J at [76];
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentencing - whether fixed term sentence represents a notional non-parole period or full term - fixed terms imposed within range for full term set out in guideline judgment - whether error requiring intervention - sentence appeal - armed robberies - whether extension of time should be granted - whether procedural unfairness in not allowing discount for guilty pleas indicated during proceedings on sentence - whether non-parole period erroneously extended - whether sentence manifestly excessive.
Legislation Cited: Crimes Act 1900 s 94, s 97(1), s 344A(1)
Crimes Sentencing Procedure Act 1999 (NSW), s 45, s 53A, s 55
Pawnbroker and Second-hand Dealers Act 1996 s 24
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Collier v R [2012] NSWCCA 213
Fairbairn v R [2006] NSWCCA 337; (2006) 165 A Crim R 434
Lipchin v R [2013] NSWCCA 77
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Dunn [2004] NSWCCA 346
R v Fernando [2002] NSWCCA 28
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Newman [2004] NSWCCA 113
R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
R v Thomson; R Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Re Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Trujilo-Mesa v R [2010] NSWCCA 201
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Principal judgment
Parties: Maxwell Tuvunivono (Applicant)
Crown (Respondent)
Representation: Counsel:
I McLachlan (Applicant)
T Smith (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2009/1272
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-04-08 00:00:00

Before:

Knox DCJ

File Number(s):

2009/1272

Judgment

BASTEN JA: The applicant sought leave to appeal with respect to sentences imposed upon him for 10 offences of armed robbery or attempted armed robbery to which he had pleaded guilty. Fourteen further offences, including 11 of armed robbery and one attempted armed robbery, were included on a Form 1, to be taken into account in sentencing for the first count.

The background circumstances, the sentences and the grounds of appeal are all fully set out in the judgment of Price J and need not be repeated. I agree with Price J that there should be a grant of leave to appeal in respect of each sentence and agree, with one exception, with his reasons for rejecting each ground.

The exception is ground 3. That ground…

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 Tuvunivono v R

Details

AGLC: Tuvunivono v R [2013] NSWCCA 176
Case: [2013] NSWCCA 176
Decision Date: 02 August 2013

CaseChat Overview and Summary

The appellant, Tuvunivono, appealed against his conviction and sentence for multiple armed robberies. The appeal was heard in the High Court of Australia. The central issues were whether the fixed term sentences imposed by the trial judge represented a notional non-parole period or the full term, and if so, whether this was an error necessitating intervention. The appellant argued that the fixed term sentences were within the range for the full term set out in the guideline judgment, and thus should be considered as notional non-parole periods. Additionally, the appellant sought an extension of time for the appeal and argued that procedural unfairness occurred when the trial judge did not allow a discount for guilty pleas that were indicated during the sentencing proceedings. The appellant further contended that the non-parole period was erroneously extended and that the sentence was manifestly excessive.

The High Court held that the fixed term sentences did not represent a notional non-parole period but were instead the full term of the sentence. However, this was not considered an error requiring intervention as the sentences were within the appropriate range. The court further found that there was no procedural unfairness in not allowing a discount for the guilty pleas that were indicated during the sentencing proceedings. The court rejected the argument that the non-parole period was erroneously extended and concluded that the sentence was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.

The High Court's decision clarified that fixed term sentences imposed within the range for the full term, as set out in guideline judgments, do not automatically represent a notional non-parole period. Additionally, the court emphasized that procedural fairness does not necessarily require a discount for guilty pleas indicated during sentencing proceedings. The court also found that the sentence imposed was not manifestly excessive, thus affirming the original sentence. The appeal was dismissed, and the original sentence of the appellant was upheld.

Orders