De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32

De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32

The sentencing judge erred in describing the offending as close to or approaching a worst case. Although the home invasion was serious, planned, armed and terrifying, it involved larceny as the serious indictable offence, the circumstance of special aggravation was being armed with a dangerous weapon, no actual violence as distinct from threats of violence was inflicted, no serious injury was suffered, and there was no evidence of trauma suffered by the children. The offending was properly assessed as less than mid-range, and the sentences, including non-parole periods exceeding the standard non-parole period, were manifestly excessive and unreasonable or plainly unjust.

Jurisdiction
Australia
Judgment Date
13 March 2015
Procedural Posture
Criminal Appeal Against Sentence / Appeal From Sentences Imposed in the District Court on 29 January 2013
Outcome
Appeals allowed; District Court sentences for the s 112(3) charge quashed; Zechel, Puru and Tuimaualuga re-sentenced; De Jong remitted to the District Court for re-sentencing.
Legal Topics
['specially Aggravated Break, Enter and Commit Serious Indictable Offence' 'manifest Excess' 'worst Category Offending' 'standard Non Parole Period' 're Sentencing' 'subjective Circumstances']
['criminal Law' 'sentencing' 'criminal Appeals'] ['specially Aggravated Break, Enter and Commit Serious Indictable Offence' 'manifest Excess' 'worst Category Offending' 'standard Non Parole Period' 're Sentencing' 'subjective Circumstances']

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Procedural Posture

Criminal Appeal Against Sentence / Appeal From Sentences Imposed in the District Court on 29 January 2013

Legal Issues

  1. 1 ['Whether the sentences for specially aggravated break, enter and commit a serious indictable offence contrary to s 112(3) of the Crimes Act 1900 (NSW) were manifestly excessive.' 'Whether the sentencing judge erred in assessing the offending as approaching or close to a worst case of offending against s 112(3) of the Crimes Act 1900 (NSW).' "Whether De Jong's dysfunctional upbringing, Aboriginality, early drug use and related subjective circumstances were given adequate weight." "Whether Zechel's sentence commencement date was fixed in error."]

Ratio Decidendi

The sentencing judge erred in describing the offending as close to or approaching a worst case. Although the home invasion was serious, planned, armed and terrifying, it involved larceny as the serious indictable offence, the circumstance of special aggravation was being armed with a dangerous weapon, no actual violence as distinct from threats of violence was inflicted, no serious injury was suffered, and there was no evidence of trauma suffered by the children. The offending was properly assessed as less than mid-range, and the sentences, including non-parole periods exceeding the standard non-parole period, were manifestly excessive and unreasonable or plainly unjust.

Court Disposition

Appeals allowed; District Court sentences for the s 112(3) charge quashed; Zechel, Puru and Tuimaualuga re-sentenced; De Jong remitted to the District Court for re-sentencing.

Orders

  • ['The appeals of each of William John Zechel, Tahi Paul Puru, Billy Pusa Tuimaualuga and Daniel Warren De Jong be allowed.' 'The sentences imposed in the District Court in respect of the charge laid under s 112(3) of the Crimes Act be quashed.' 'William John Zechel: Imprisonment for a non-parole period of 4 years...