Tonga, Samuel v R [2023] NSWCCA 120

Tonga, Samuel v R [2023] NSWCCA 120

The sentencing judge did not err in refusing an intensive correction order. The evidence of good prospects of rehabilitation and a medium to low risk of reoffending did not require a finding that the applicant was unlikely to reoffend. Describing an intensive correction order as an act of leniency was not erroneous. The judge correctly undertook the three-stage process, treated community safety as the paramount consideration, made an available neutral or inconclusive assessment under s 66(2), and was entitled under s 66(3) to give determinative weight to general deterrence in the context of a violent road rage offence.

Jurisdiction
Australia
Judgment Date
29 May 2023
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['intensive Correction Order' 'community Safety' 'risk of Reoffending' 'general Deterrence' 'sentence of Imprisonment' 'recklessly Causing Grievous Bodily Harm']
['criminal Law' 'sentencing'] ['intensive Correction Order' 'community Safety' 'risk of Reoffending' 'general Deterrence' 'sentence of Imprisonment' 'recklessly Causing Grievous Bodily Harm']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred in failing to find that the applicant was unlikely to reoffend.' 'Whether the sentencing judge erred in categorising the grant of an intensive correction order as an act of leniency.' 'Whether the sentencing judge erred in applying s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including by giving decisive weight to general deterrence when refusing an intensive correction order.']

Ratio Decidendi

The sentencing judge did not err in refusing an intensive correction order. The evidence of good prospects of rehabilitation and a medium to low risk of reoffending did not require a finding that the applicant was unlikely to reoffend. Describing an intensive correction order as an act of leniency was not erroneous. The judge correctly undertook the three-stage process, treated community safety as the paramount consideration, made an available neutral or inconclusive assessment under s 66(2), and was entitled under s 66(3) to give determinative weight to general deterrence in the context of a violent road rage offence.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant the applicant leave to appeal from the sentence imposed in the District Court on 14 November 2022.' 'Dismiss the appeal.']