Citation: Tuhi v R [2025] NSWCCA 115
Court: Court of Criminal Appeal, NSW
Date: 1 August 2025
Judges: Mitchelmore JA (lead judgment); Ierace J (agreeing at [48]); Coleman J (agreeing at [51])
Background
The applicant was convicted after a jury trial in the District Court at Lismore of one count of detaining a person with intent to obtain a psychological advantage (contrary to s 86(1)(b) of the Crimes Act 1900 (NSW)) and three counts of common assault (contrary to s 61 of the same Act). All offences occurred on the evening of 7 October 2021 and involved two victims: the applicant's then-partner and his then-housemate. The offending arose from a domestic dispute that escalated over several hours.
The applicant was sentenced to an aggregate term of five years imprisonment with a non-parole period of three years. Two further related offences, to which he had pleaded guilty, attracted concurrent sentences of 12 months and 9 months respectively.
The applicant sought leave to appeal the aggregate sentence. Although his notice of appeal raised only manifest excess, his written submissions also alleged errors in the sentencing judge's assessment of his subjective case, including findings about remorse, the weight given to certain evidence, and inconsistencies in material about a back injury.
Legal Issues
- Whether the sentencing judge erred in finding the applicant was not remorseful
- Whether the sentencing judge gave improper weight to particular pieces of evidence in assessing the applicant's subjective case
- Whether the indicative sentence of 18 months for the common assault on the housemate (count 8) was excessive relative to the judge's own assessment of that count's objective seriousness
- Whether the aggregate sentence of five years was manifestly excessive, and whether the totality principle was properly applied
Decision
Subjective case: The Court rejected all grounds of error relating to the subjective case. The finding of no remorse was consistent with the evidence before the sentencing judge and aligned with submissions made by the applicant's own counsel at sentence. The Court confirmed that the weight assigned to individual pieces of evidence is a matter within the sentencing judge's discretion and does not constitute an appealable error. Evidence of the applicant's present circumstances, raised for the first time on appeal, could not be used to establish error by the sentencing judge.
Indicative sentence for count 8: The Court accepted that the indicative sentence of 18 months for the common assault on the housemate was excessive. The sentencing judge had assessed that count's objective seriousness as "just below mid-range" under an offence carrying a maximum of two years imprisonment, and an indicative sentence of 18 months was difficult to reconcile with that assessment.
Aggregate sentence: Despite the error in the indicative sentence, the Court held that the aggregate sentence was not manifestly excessive. Indicative sentences are not themselves amenable to appeal, and an error in an indicative sentence does not automatically produce an error in the aggregate sentence. The critical question is whether the aggregate sentence properly reflects the overall criminality of the offending. Having regard to the applicant's limited subjective case, the need for general deterrence, the domestic violence context of three counts, and the adjustment made to the non-parole period to reflect prospects of rehabilitation, the aggregate sentence was not unreasonable or plainly unjust.
Per Coleman J: Although the indicative sentence for count 8 was of concern, and the aggregate sentence was a very stern one, that assessment alone did not establish manifest excess. Sentencing judges are entitled to considerable flexibility in exercising the sentencing synthesis, and the Court could not conclude the sentence was unreasonable or plainly unjust. Per Ierace J: There was an incongruity between the sentencing judge's assessment of objective seriousness for count 8 and the indicative sentence given, but the aggregate sentence remained sound when the sentencing remarks were read as a whole.
Orders Made
• The application for leave to appeal against sentence is dismissed
• The aggregate sentence imposed by the sentencing judge is not manifestly excessive
Key Takeaways
- An error in an indicative sentence does not automatically infect an aggregate sentence. The Court of Criminal Appeal confirmed that indicative sentences are not themselves amenable to appeal, and the proper focus is whether the aggregate sentence reflects the overall criminality of the offending.
- A sentencing judge's assessment of the weight to be given to individual pieces of evidence is a matter of discretion and does not constitute an appealable error.
- Where a finding of no remorse is consistent with the evidence before the sentencing judge and aligned with the submissions of the applicant's own counsel at sentence, no error arises.
- Evidence of an applicant's present circumstances, raised for the first time on appeal, cannot be used to establish error in the sentencing judge's assessment of the subjective case.
- In dismissing the appeal, the Court emphasised that a sentence which one judge might consider very stern, or might not have imposed, does not meet the threshold for manifest excess without more. The sentence must be unreasonable or plainly unjust.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 61, 86(1)(b), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)
- Criminal Procedure Act 1986 (NSW) s 166
Cases:
- AA v R [2024] NSWCCA 132
- Ahmad v R [2021] NSWCCA 30
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Kliendienst v R [2020] NSWCCA 98
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Sara [2020] NSWCCA 119