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11
Court of Criminal Appeal 7 June 2024

Tukuafu v R

[2024] NSWCCA 84

Assault & violenceDrugs
SENTENCING A PPEAL AGAINST SENTENCE

Citation: Tukuafu v R [2024] NSWCCA 84
Court: NSW Court of Criminal Appeal
Date: 7 June 2024
Judges: Ward P, Chen J, Huggett J

Background

The appellant pleaded guilty to four offences: one count of breaking, entering and committing a serious indictable offence in circumstances of special aggravation (intentionally wounding a person knowing others were present in the dwelling), and three counts of supplying prohibited drugs (cocaine). Four further offences were acknowledged on two Form 1 documents and taken into account at sentencing.

The home invasion offence arose from an incident in October 2020 in which the appellant and an unknown co-offender attended a residential property just before midnight and attacked a male victim with a metal shock absorber. The appellant produced a knife and stabbed the male victim. The victim's wife was also assaulted. The drug offences concerned the distribution of multiple ounces of cocaine, with the appellant's role including bagging and cutting the drug and coordinating supply through runners.

The sentencing judge in the District Court imposed an aggregate sentence of eight years' imprisonment with a non-parole period of five years, having allowed a 25 per cent reduction for the guilty pleas. The appellant sought leave to appeal against that sentence on three grounds.

  • Whether the sentencing judge erred in finding that the male victim suffered "life-threatening injuries" as a result of being stabbed, and whether that finding improperly informed the assessment of objective seriousness
  • Whether the sentencing judge erred in taking into account offences listed on Form 1 documents when assessing the objective seriousness of the principal offences to which those Form 1 documents were attached
  • Whether the sentencing judge erred in admitting and using the appellant's juvenile criminal record, contrary to s 15 of the Children (Criminal Proceedings) Act 1987 (NSW)

Decision

On the first ground, the Court held that the evidence before the sentencing judge established beyond reasonable doubt that the male victim suffered life-threatening injuries from the stabbing. The finding was properly treated as relevant to the objective seriousness of the break and enter offence. Critically, the finding was not used to establish the prescribed circumstance of aggravation under s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have required a different evidential foundation. No error was made out on this ground.

On the second ground, the Court drew a distinction between the two Form 1 documents. The sentencing judge did not err in his approach to the Form 1 offence attached to the break and enter count. However, he did err in treating the Form 1 offences attached to one of the drug supply counts as informing his assessment of the objective seriousness of each of the supply offences. The Court noted an argument that the earlier decision in Flick v R [2023] NSWCCA 197 was wrongly decided, but declined to resolve that question. The further offences in the present case were not "inextricably linked" to the relevant principal offence, distinguishing the facts from those in Flick, and so the error was established without needing to revisit that authority.

On the third ground, the Court held that s 15 of the Children (Criminal Proceedings) Act 1987 imposes two preconditions before evidence of prior juvenile offences may be admitted. Both preconditions were satisfied in this case, and the sentencing judge's approach to the appellant's juvenile criminal history disclosed no error.

Although error was established in relation to the Form 1 approach on the drug counts, the Court exercised the sentencing discretion afresh and concluded that no lesser sentence was warranted. The Court noted that, if not for the institutional practice of not increasing a sentence on appeal, a more severe sentence would have been open. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge may find that a victim suffered "life-threatening injuries" as a relevant circumstance of objective seriousness without that finding constituting the formal statutory aggravating factor under s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (NSW), provided the evidence supports it beyond reasonable doubt.
  • Under established sentencing principle, offences listed on a Form 1 document generally cannot be used to increase the objective seriousness of the principal offence to which they are attached; however, the Court of Criminal Appeal declined to determine whether Flick v R [2023] NSWCCA 197 was correctly decided, as the further offences in this case were factually distinguishable.
  • Section 15 of the Children (Criminal Proceedings) Act 1987 (NSW) contains two distinct preconditions for the admission of juvenile criminal history in adult sentencing proceedings; both must be satisfied before such evidence can be received.
  • Even where sentencing error is established on appeal, the appellate court exercises the sentencing discretion afresh and will dismiss the appeal if no lesser sentence is warranted in all the circumstances.
  • Consistent with the Court of Criminal Appeal's established practice, the Court declined to impose a more severe sentence on appeal even after finding that the sentencing judge's approach had been more lenient than the evidence justified.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15
- Crimes Act 1900 (NSW), ss 59(2), 93T(1), 112(3), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(ib), 44
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- Flick v R [2023] NSWCCA 197
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hoare v The Queen (1989) 167 CLR 348
- Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- Camilleri v R [2023] NSWCCA 106
- Kapila v R [2024] NSWCCA 48
- MF v R [2024] NSWCCA 42
- Benn v R [2023] NSWCCA 24
- DS v R; DM v R [2022] NSWCCA 156
- FL v R [2020] NSWCCA 114
- LN v R [2020] NSWCCA 131