Citation: Regina v Tenaku Tuatara [1999] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 28 June 1999
Judge(s): Sully J; Bell J
Background
The appellant had previously pleaded guilty to break, enter and steal and was serving a sentence of fifteen months minimum term at Emu Plains Detention Centre. She escaped from custody along with another woman and, while at large as an escapee, broke into residential premises at Rydalmere by forcing open a locked window. She stole approximately $3,500 worth of property.
After her arrest, she initially denied involvement. She only admitted the offence after police confronted her with fingerprint evidence. She later pleaded guilty to the fresh charge of break, enter and steal under s 112 of the Crimes Act 1900, which carries a maximum of fourteen years penal servitude.
District Court Judge Luland sentenced her at Parramatta on 28 October 1998 to a minimum term of twelve months commencing 7 June 1999, with an additional term of eighteen months. The appellant appeared in person before the Court of Criminal Appeal to challenge the severity of that sentence.
Legal Issues
- Whether the sentencing Judge fell into error in the sentencing process in a manner that would justify appellate intervention.
- Whether the sentence imposed was within the range available to a sentencing court exercising a sound discretion.
Decision
The Court noted that the question on a sentence appeal is not whether the appellate judges would themselves have imposed a lighter sentence. The proper question is whether an error in the sentencing process has been demonstrated. Sully J found no such error.
The Court accepted that the appellant raised genuinely sympathetic personal circumstances in a three-page manuscript document tendered as an exhibit, including compassionate matters and the existence of a deportation order that would take effect upon completion of her minimum term. Despite acknowledging these as "sad matters," the Court found they did not displace the primary analysis of whether error had been shown below.
Sully J was satisfied that the sentencing Judge had adequately considered both the objective seriousness of the offence and the relevant subjective factors, including the appellant's youth and difficult personal background. The primary Judge had specifically noted the aggravating feature that the offence was committed while the appellant was an escapee serving a sentence for the very same type of offending. The Court of Criminal Appeal agreed entirely with that characterisation and found the resulting sentence well within the available range.
Orders Made
- Leave to appeal granted.
- Appeal against sentence dismissed.
Key Takeaways
- No error was established in the sentencing Judge's process, and the Court of Criminal Appeal confirmed that the absence of demonstrated error is the threshold question on any sentence appeal, not whether the appellate judges would have imposed a lesser sentence.
- Committing a further offence of the same type while escaped from custody serving a sentence for identical offending is a significant aggravating factor that a sentencing court is entitled to weigh heavily.
- Sympathetic personal circumstances, including imminent deportation and difficult personal history, do not automatically translate into a reduced sentence where no error in the primary sentencing process can be identified.
- In dismissing the appeal, the Court affirmed that community expectations around the denunciation of serious property offending are a legitimate consideration at the sentencing stage.
- Under s 112 of the Crimes Act 1900, break, enter and steal carries a statutory maximum of fourteen years penal servitude; a twelve-month minimum term was held to be well within the available sentencing range on the facts presented.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112 (break, enter and steal; maximum penalty of fourteen years penal servitude)
Cases cited: None cited in the judgment text.