TESTALAMUTA v R [2007] NSWCCA 258

TESTALAMUTA v R [2007] NSWCCA 258

The sentencing judge's assessment of the objective gravity of both principal offences was open, given the premeditated armed entry into the victim's home to influence a witness not to attend court, the use of a loaded firearm, the firing of two shots at close range, the presence of the victim's child nearby, and the applicant's offending while on bail contrary to a condition not to approach the victim's premises. The psychological material did not mitigate the offences because the applicant's intellectual capacity did not amount to intellectual disability and there was no acceptable evidence that anyone influenced him to commit the offences. Although the sentences were severe and the...

Jurisdiction
Australia
Judgment Date
04 September 2007
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Appeal
Outcome
Leave to appeal granted, appeal dismissed.
Legal Topics
['specially Aggravated Breaking and Entering' 'maliciously Inflicting Grievous Bodily Harm With Intent' 'attempt to Intimidate Witness' 'standard Non Parole Periods' 'manifest Excess' 'form 1 Offences' 'offending While on Bail']
['criminal Law' 'sentencing'] ['specially Aggravated Breaking and Entering' 'maliciously Inflicting Grievous Bodily Harm With Intent' 'attempt to Intimidate Witness' 'standard Non Parole Periods' 'manifest Excess' 'form 1 Offences' 'offending While on Bail']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Sentence Appeal

Legal Issues

  1. 1 ['Whether the sentences of fifteen years imprisonment with non-parole periods of ten-and-a-half years were manifestly excessive.' 'Whether the sentencing judge erred in assessing the offences as towards the upper end of the range of objective gravity.' "Whether the sentencing judge failed to give adequate weight to the applicant's psychological material and below average intellectual capacity." 'Whether the sentencing judge misused the standard non-parole period as a guide to the appropriate sentences.']

Ratio Decidendi

The sentencing judge's assessment of the objective gravity of both principal offences was open, given the premeditated armed entry into the victim's home to influence a witness not to attend court, the use of a loaded firearm, the firing of two shots at close range, the presence of the victim's child nearby, and the applicant's offending while on bail contrary to a condition not to approach the victim's premises. The psychological material did not mitigate the offences because the applicant's intellectual capacity did not amount to intellectual disability and there was no acceptable evidence that anyone influenced him to commit the offences. Although the sentences were severe and the...

Court Disposition

Leave to appeal granted, appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']