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Tweedie v R

Tweedie v R

Case [2015] NSWCCA 71 16 April 2015

Appeal

Sentencing

Aggregate Sentencing

Discount for Guilty Plea

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tweedie v R [2015] NSWCCA 71
Hearing dates: 16 April 2015
Decision date: 16 April 2015
Before: Basten JA at [53];
R A Hulme J at [1];
Adamson J at [59]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeals – appeal against sentence – dishonesty offences – fraud – larceny – goods in custody – whether judge’s rejection of applicant’s evidence of remorse procedurally unfair –where evidence not challenged in cross-examination – where no indication given at hearing that evidence was to be accepted – open to the judge to reject applicant’s evidence of remorse - no denial of procedural fairness

CRIMINAL LAW – appeals – appeal against sentence - aggregate sentencing – whether principles of aggregate sentencing properly applied – criminality of individual offences appropriately assessed - judge not required to detail process of accumulation and application of principle of totality – no error established
CRIMINAL LAW – appeals – appeal against sentence – aggregate sentencing – discount for guilty plea – discount not to be applied to aggregate sentence – discount a matter to be taken into account in determining indicative sentences – no error established
Legislation Cited: Crimes Act 1900 (NSW) ss 117, 192E, 527C
Crimes (Sentencing Procedure) Act 1999 (NSW)
ss 21A, 22, 53A
Criminal Procedure Act 1986 (NSW) s 166
Cases Cited: Dang v R [2014] NSWCCA 47
Dinsdale v The Queen (2000) 202 CLR 321
JM v R [2014] NSWCCA 297
Liles v R (Cth) [2014] NSWCCA 289
R v Brown [2012] NSWCCA 199
R v Nykolyn [2012] NSWCCA 219
Subramaniam v R [2013] NSWCCA 159
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category: Principal judgment
Parties: Carl Lyle Tweedie (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr J Nicholson SC (Applicant)
Mr P Ingram SC (Crown)
Solicitors:
S Alexander
Solicitor for Public Prosecutions

File Number(s): 2013/236458
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

7 March 2014

Before:

King SC DCJ

File Number(s):

2013/236458

Judgment

R A HULME J: Carl Lyle Tweedie ("the applicant") was sentenced by his Honour Judge King SC in the District Court at Gosford on 7 March 2014 in respect of a number of dishonesty offences detailed below. His Honour imposed an aggregate sentence of imprisonment for 4 years with a non-parole period of 3 years dating from 14 February 2014.

Offence and sentence details

The aggregate sentence was passed in respect of 27 offences of fraud (that is, dishonestly obtaining property by deception (s 192E(1)(a) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years); 4 offences of attempted fraud (attempting to dishonestly obtain property by deception); and 1 offence of larceny (s 117 – maximum penalty 5 years). It also encompassed 7 summary offences listed on a certificate pursuant to 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 Tweedie v R

Details

AGLC: Tweedie v R [2015] NSWCCA 71
Case: [2015] NSWCCA 71
Decision Date: 16 April 2015

CaseChat Overview and Summary

The applicant, Tweedie, appealed against his sentence for multiple dishonesty offences, including fraud and larceny, before the court. The appeal contested the judge's rejection of the applicant's evidence of remorse and the application of aggregate sentencing principles. The applicant argued that the rejection of his evidence of remorse was procedurally unfair as it was not challenged in cross-examination and no indication was given at the hearing that the evidence would be accepted. The applicant also contested the application of aggregate sentencing principles, arguing that the criminality of the individual offences was not appropriately assessed.

The court found that the judge was entitled to reject the applicant's evidence of remorse, as there was no procedural unfairness in doing so. The court noted that the evidence was not challenged in cross-examination and there was no indication given at the hearing that the evidence would be accepted. The court also found that the principles of aggregate sentencing were properly applied, and that the judge was not required to detail the process of accumulation and application of the principle of totality. The court found that the criminality of the individual offences was appropriately assessed and that the discount for a guilty plea was a matter to be taken into account in determining indicative sentences.

The court dismissed the appeal, finding that there was no error established in the application of aggregate sentencing principles or in the rejection of the applicant's evidence of remorse. The appeal was dismissed, and the original sentence was upheld. The court made no orders regarding costs.

Orders