Tatur v R [2020] NSWCCA 255

Tatur v R [2020] NSWCCA 255

The appeal was allowed because the sentencing judge erred in qualifying and discounting Dr Seidler's opinion about the applicant's intellectual disability without an evidentiary basis and without adequate reasons, and also erred by using JIRS sentencing statistics and counsel's range submissions in an inappropriate way. Proper weight to the applicant's schizoaffective disorder, intellectual disability, onerous custody, remorse, plea, and rehabilitation prospects warranted a lesser sentence, while the seriousness of the offence still required full-time imprisonment.

Jurisdiction
Australia
Judgment Date
07 October 2020
Procedural Posture
Sentence Appeal / Application for Leave to Appeal and Appeal From Sentence Imposed in the District Court on 22 August 2019
Outcome
Leave to appeal granted; appeal allowed; original sentence quashed; applicant resentenced to 4 years' imprisonment with a non-parole period of 2 years.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'sentence Appeal' 'intellectual Disability and Cognitive Impairment' 'expert Evidence' 'judicial Commission Sentencing Statistics' 'manifest Excess' 'special Circumstances' 'non Parole Period']
['criminal Law' 'sentencing'] ['aggravated Sexual Intercourse Without Consent' 'sentence Appeal' 'intellectual Disability and Cognitive Impairment' 'expert Evidence' 'judicial Commission Sentencing Statistics' 'manifest Excess' 'special Circumstances' 'non Parole Period']

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Procedural Posture

Sentence Appeal / Application for Leave to Appeal and Appeal From Sentence Imposed in the District Court on 22 August 2019

Legal Issues

  1. 1 ["Whether the sentencing judge erred in rejecting or qualifying Dr Katie Seidler's opinion as to the degree of the applicant's intellectual disability." "Whether the sentencing judge gave insufficient or no reasons for rejecting Dr Seidler's opinion." 'Whether the sentencing judge was distracted from a proper analysis of objective seriousness by placing too much weight on Judicial Commission sentencing statistics and by receiving submissions as to an appropriate sentencing range.' "Whether the sentencing judge failed to give sufficient weight to the applicant's subjective case, including the degree of intellectual disability." 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The appeal was allowed because the sentencing judge erred in qualifying and discounting Dr Seidler's opinion about the applicant's intellectual disability without an evidentiary basis and without adequate reasons, and also erred by using JIRS sentencing statistics and counsel's range submissions in an inappropriate way. Proper weight to the applicant's schizoaffective disorder, intellectual disability, onerous custody, remorse, plea, and rehabilitation prospects warranted a lesser sentence, while the seriousness of the offence still required full-time imprisonment.

Court Disposition

Leave to appeal granted; appeal allowed; original sentence quashed; applicant resentenced to 4 years' imprisonment with a non-parole period of 2 years.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentence imposed on the applicant on 22 August 2019 for the offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW) is quashed.' "The applicant is sentenced for the offence of aggravated sexual intercourse without...