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Court of Criminal Appeal 10 August 2018

Tuite v R

[2018] NSWCCA 175

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE YOUNG OFFENDER DYSFUNCTIONAL BACKGROUND LIKELIHOOD OF INSTITUTIONALISATION

Citation: Tuite v R [2018] NSWCCA 175
Court: Court of Criminal Appeal, New South Wales
Date: 10 August 2018
Judges: Hoeben CJ at CL; R A Hulme J; Button J

Background

The applicant was sentenced in the Parramatta District Court in February 2016 following convictions and guilty pleas across multiple serious offences committed over three days in March 2013, when he was 18 years old. The offences included four counts of aggravated break, enter and steal, one count of specially aggravated detain for advantage, and one count of aggravated enter dwelling with intent.

The most serious offending occurred at a home in Sans Souci, where the applicant and a co-offender broke in during the early hours of the morning and subjected a 60-year-old woman to sustained violence, detention, and a threat to kill. The victim suffered a spinal fracture, significant facial injuries, and ongoing post-traumatic stress disorder. Property stolen across all offences was of substantial value.

The sentencing judge imposed an aggregate sentence of 14 years' imprisonment with a non-parole period of 9 years, commencing 12 March 2014. The applicant sought leave to appeal on the single ground that the sentence was manifestly excessive.

  • Whether the aggregate sentence of 14 years' imprisonment was manifestly excessive in all the circumstances
  • Whether the sentencing judge properly applied the totality principle (the principle that the overall sentence should be just and proportionate when multiple offences are sentenced together) when accumulating the individual sentences
  • Whether sufficient weight was given to the applicant's youth and deprived background, including the principles from Bugmy v The Queen [2013] HCA 37 regarding the ongoing relevance of childhood deprivation
  • Whether the sentence was of a kind that risked improperly "crushing" a young offender or rendering institutionalisation more likely

Decision

Hoeben CJ at CL granted leave to appeal but dismissed the appeal. His Honour reviewed the indicative sentences in detail and found that the sentencing judge had properly addressed all relevant considerations, including the applicant's youth, dysfunctional background, and the totality principle. No identifiable error in the exercise of the sentencing discretion was established.

The applicant's case was framed as one of latent error under the principle in House v The King (1936) 55 CLR 499, meaning the applicant argued the final figure was so far outside the available range that error must be inferred, even if the particular error could not be pinpointed. Hoeben CJ at CL held that this threshold was not met. The sentencing judge's reasons disclosed proper engagement with all relevant principles, and the aggregate sentence was within the range open to him.

R A Hulme J agreed, noting that while imposing a 14-year sentence on a person for offences committed at age 18 is a serious matter, the offending itself was of a very serious nature and the outcome was within the discretion of the primary judge. His Honour added that the applicant's case had been confined squarely to an assertion of latent error, not a contention that specific factors had been given incorrect weight, and that characterisation was accepted as accurate.

Button J agreed with both colleagues. His Honour described the aggregate head sentence as "very stern, but not plainly unreasonable," pointing to the premeditation, the brutalisation and prolonged detention of a defenceless victim in her own home, the threat of death, and the lasting physical and psychological harm caused.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence will not be set aside as manifestly excessive merely because it is severe: the Court of Criminal Appeal confirmed that the threshold for establishing latent error under House v The King requires the outcome to be unreasonable or plainly unjust, not merely stern.
  • Where a sentencing judge's reasons demonstrate proper engagement with youth, deprived background, and the totality principle, an appellate court will not intervene simply because a different result might have been reached.
  • The Bugmy principles regarding the persistent relevance of childhood disadvantage to moral culpability do not operate as a ceiling on sentence; they are one factor among many in a discretionary exercise.
  • In dismissing the appeal, the Court treated the gravity of the primary offending, particularly prolonged violence, detention, and a threat to kill in a home invasion context, as central to the proportionality of the aggregate sentence.
  • No House v R error was disclosed where the sentencing judge applied all relevant principles correctly, even if the resulting sentence was at the higher end of what the circumstances might support.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2), 86(3), 109(2), 111(2), 112(2), 117
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- R v Engert [1995] 84 A Crim R 67
- R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
- JT v R [2012] NSWCCA 133
- KT v R [2008] NSWCCA 51; 182 A Crim R 571
- Hughes v R [2015] NSWCCA 330; (2015) 93 NSWLR 474
- Hughes v R [2018] NSWCCA 2
- Kresovic v R [2018] NSWCCA 37
- Chamseddine v R [2017] NSWCCA 176
- Clinton v R [2014] NSWCCA 320
- Dang v R [2014] NSWCCA 47
- JM v R [2014] NSWCCA 297
- Haines v R [2012] NSWCCA 238
- Fajloun and Fajloun v R [2011] NSWCCA 41
- Ma v R; Pham v R [2007] NSWCCA 240