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22
Court of Criminal Appeal 3 April 2014

R v Tuuta

[2014] NSWCCA 40

Also reported as (2014) 239 A Crim R 399
Assault & violence
APPEAL NON SENTENCE MANIFESTLY INADEQUATE RESPONDENT RE SENTENCED TO A NON

Citation: R v Tuuta [2014] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 3 April 2014
Judges: Bathurst CJ, Hoeben CJ at CL, Bellew J (judgment by Bellew J, others agreeing)

Background

The respondent was convicted by jury of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence arose from an unprovoked attack on a young woman at a bus stop near Guildford Railway Station in the early hours of 14 January 2012. The respondent approached the victim without provocation and delivered multiple heavy blows to her face, fracturing her jaw in two places and causing injuries that required surgical insertion of titanium plates.

The victim had no prior dispute or animosity with the respondent. The attack was described by the sentencing judge as a "gratuitous and vicious assault." At the time of the offence, the respondent was on parole for a previous conviction of wounding with intent to cause grievous bodily harm, an offence of similar character.

At first instance, Judge Craigie SC sentenced the respondent to a non-parole period of 3 years, 7 months and 6 days, with a balance of term of 2 years, 4 months and 25 days, and made a finding of special circumstances that reduced the proportion of the non-parole period to 60% of the total sentence. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentence imposed at first instance was manifestly inadequate in all the circumstances.
  • Whether the sentencing judge gave sufficient weight to general deterrence, the respondent's criminal history, and the fact that he was on parole at the time of the offence.
  • Whether the finding of special circumstances (justifying a longer balance of term relative to the non-parole period) was warranted on the evidence before the sentencing court.

Decision

The Court of Criminal Appeal found the original sentence was manifestly inadequate. Bellew J identified several significant factors that demanded a substantially heavier sentence: the offence was entirely unprovoked; the victim suffered serious and lasting injuries; the respondent had an extensive history of violent offending dating back to the Children's Court; and he committed the offence while on parole for a materially similar violent offence. These factors, particularly the need for strong general deterrence, required a sentence well above what was imposed.

The Court held that the sentencing judge, while correctly identifying the seriousness of the offending and describing it as gratuitous and vicious, failed to impose a sentence that adequately reflected those findings. The respondent's youth was the only mitigating factor, and it could not carry sufficient weight to justify the relatively lenient outcome at first instance. The Court noted that a standard non-parole period of 7 years applies to this offence, and that the original non-parole period of approximately 3 years and 7 months fell significantly below what the circumstances warranted.

On special circumstances, the Court held the finding was not supported by the evidence. To justify a special circumstances finding, there must be significant positive signs indicating that a longer parole period is likely (not merely possibly) to result in successful rehabilitation. The evidence of adaptation to prison discipline and limited prospects of rehabilitation fell well short of that standard.

The Court exercised its discretion to re-sentence rather than dismiss the appeal. No factors warranted invoking the residual discretion to dismiss despite manifest inadequacy.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed by Judge Craigie SC on 7 August 2013 quashed.
  • Respondent re-sentenced to a non-parole period of 5 years imprisonment, commencing 3 September 2012 and expiring 2 September 2017.
  • Additional term of 1 year and 8 months, commencing 3 September 2017 and expiring 2 May 2019.
  • Total sentence: 6 years and 8 months imprisonment.
  • Eligible for release on parole on 2 September 2017.

Key Takeaways

  • A sentencing court's own characterisation of an assault as "gratuitous and vicious" must be reflected in the actual sentence imposed; a failure to align the penalty with such findings can itself support a finding of manifest inadequacy on Crown appeal.
  • Committing a serious violent offence while on parole for a materially similar offence is a significant aggravating factor that carries substantial weight in the sentencing exercise, particularly where general deterrence is a prominent consideration.
  • Under the relevant authorities, a finding of special circumstances requires more than limited positive signs of rehabilitation; there must be significant evidence that a longer parole period is likely, not merely possible, to result in rehabilitative success.
  • The Court of Criminal Appeal confirmed that a respondent's youth, while a genuine mitigating factor, cannot bear sufficient weight to justify a substantially reduced sentence where serious, unprovoked violence, a relevant criminal history, and parole breach all point to a substantially higher penalty.
  • In dismissing the special circumstances finding and re-sentencing, the Court restored a non-parole period (5 years) considerably closer to the standard non-parole period of 7 years prescribed for offences under s 33(1)(b) of the Crimes Act 1900 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)

Cases
- AM v R [2012] NSWCCA 203
- Dinsdale v R [2000] HCA 54
- Duncombe v R [2003] NSWCCA 27
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Han v R [2009] NSWCCA 300
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Matzick v R [2007] NSWCCA 92
- Paxton v R [2011] NSWCCA 242
- R v Carter [2003] NSWCCA 243
- R v Fidow [2004] NSWCCA 172
- R v Hili; R v Jones [2010] HCA 45; 242 CLR 520
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Nguyen [2013] NSWCCA 195
- R v Simpson (2001) 53 NSWLR 704
- R v Woods CCA (NSW) 9 October 1990 (unreported)
- R v Zamagias [2002] NSWCCA 17
- R v Zhang [2004] NSWCCA 358
- Ramea v R [2013] NSWCCA 310
- RLS v R [2012] NSWCCA 236