Tweeddale v Regina - [2012] NSWCCA 99

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tweeddale v Regina [2012] NSWCCA 99
Hearing dates: 17 February 2012
Decision date: 21 May 2012
Before: Beazley JA at [1];
Hidden J at [54];
Rothman J at [58]
Decision:
(1) Appeal against conviction of the charge under the Crimes Act 1900, s 321(1)(a) allowed;
(2) The conviction on the charge under the Crimes Act 1900, s 321(1)(a) recorded in the District Court be quashed;
(3) Pursuant to the Criminal Appeal Act 1912, s 8A, the proceedings be continued before the Local Court at Orange on the first date available that is convenient to the Court and to the parties;
(4) Grant leave to appeal against the sentence imposed in respect of the charge under the Crimes Act 1900, s 35(4);
(5) Appeal against the sentence imposed in respect of the charge under the Crimes Act 1900, s 35(4) allowed;
(6) Sentence the appellant to imprisonment for a non-parole period of 2 years and 8 months commencing on 11 January 2011 and expiring on 10 September 2013 and an additional term of 1 year and 6 months expiring on 10 March 2015. The first date upon which the appellant is eligible for release is 10 September 2013.

Catchwords:
CRIMINAL LAW - Crimes Act 1900, s 321(1)(a) - Appeal against conviction - Plea of guilty - Whether plea was entered in circumstances amounting to a miscarriage of justice - Plea of guilty to offence particularised in indictment should not have been accepted - Conviction on charge under Crimes Act 1900, s 321(1)(a) quashed - Order for committal proceedings to be continued pursuant to Criminal Appeal Act 1912, s 8A - Appeal allowed
CRIMINAL LAW - Application for leave to appeal against sentence with respect to Crimes Act 1900, s 35(4) - Reckless wounding offence - Whether sentence manifestly excessive - Injuries sustained less extensive than found by trial judge - Crimes (Sentencing Procedure) Act 1999, s 21A
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Kalick v R (1920) 55 DLR 104
R v Rogerson [1992] HCA 25; 174 CLR 268
R v Wilks [2001] NSWCCA 383
Regina v OM [2011] NSWCCA 109
Category: Principal judgment
Parties: Jon-Pall Tweeddale (Appellant)
Regina (Respondent)
Representation: D O'Neil (Appellant)
S Bowers (Respondent)
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/118466
Decision under appeal

Citation:

R v Jon-Pall Tweeddale

Date of Decision:

2010-11-16 00:00:00

Before:

Hosking DCJ

File Number(s):

2010/118466

Judgment

BEAZLEY JA: On 12 October 2010, the appellant pleaded guilty to one count of reckless wounding contrary to the Crimes Act 1900, s 35(4) and one count of offer to confer a benefit with the intent to influence a witness in a judicial proceeding contrary to the Crimes Act, s 321(1)(a) (the s 321(1)(a) offence). The offence of reckless wounding carried a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years. The s…

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 Tweeddale v Regina

Details

AGLC: Tweeddale v Regina [2012] NSWCCA 99
Case: [2012] NSWCCA 99
Decision Date: 21 May 2012

CaseChat Overview and Summary

The appeal in Tweeddale v Regina was heard by the Court of Criminal Appeal. The appellant was convicted of assault occasioning actual bodily harm under the Crimes Act 1900, s 321(1)(a), and an application for leave to appeal against sentence in relation to a reckless wounding offence under s 35(4) of the same Act was also heard. The primary legal issue before the Court was whether the plea of guilty entered by the appellant should have been accepted by the trial judge. The appellant argued that the plea was entered in circumstances amounting to a miscarriage of justice, and the Court needed to determine whether the plea should have been accepted in light of the particular circumstances. The Court was also required to consider whether the sentence imposed was manifestly excessive in relation to the injuries sustained by the victim.

The Court found that the plea of guilty should not have been accepted as it was entered in circumstances that amounted to a miscarriage of justice. The Court determined that the trial judge should have been aware of the appellant's mental state and the impact of a prior traumatic experience on his ability to make a voluntary and informed plea. The Court found that the injuries sustained by the victim were less extensive than those found by the trial judge, and as such, the sentence imposed was manifestly excessive. The Court held that the conviction on the charge under s 321(1)(a) should be quashed and ordered that committal proceedings be continued pursuant to the Criminal Appeal Act 1912, s 8A. The appeal against sentence was also allowed, and the matter was remitted to the District Court for re-sentencing.

Orders