Tan v R [2013] NSWCCA 262

Tan v R [2013] NSWCCA 262

Although Muldrock error was established in the sentencing process, the delay of about 4.5 years was substantial, the explanation was not compelling, finality and the potential for further psychological suffering by the victim weighed against an extension, and no substantial injustice would result from refusal. Ground 2 was not made out because the finding that the offence was greater than mid-range was open despite some factual inaccuracies. On re-exercise of the sentencing discretion under s6(3), having regard to the savage and sustained attack, the use of a steel clothes-stand, psychological harm, the intention element, the earlier related assault, and the need for specific and general...

Jurisdiction
Australia
Judgment Date
12 November 2013
Procedural Posture
Criminal Sentence Appeal / Application for Extension of Time Within Which to Apply for Leave to Appeal Against Sentence
Outcome
Application for extension of time dismissed.
Legal Topics
['inflicting Grievous Bodily Harm With Intent to Cause Grievous Bodily Harm' 'assault Occasioning Actual Bodily Harm' 'standard Non Parole Period' 'muldrock Error' 'extension of Time' 'finality' 'domestic Violence' 'section 6(3) Criminal Appeal Act 1912 (nsw)']
['criminal Law' 'sentencing'] ['inflicting Grievous Bodily Harm With Intent to Cause Grievous Bodily Harm' 'assault Occasioning Actual Bodily Harm' 'standard Non Parole Period' 'muldrock Error' 'extension of Time' 'finality' 'domestic Violence' 'section 6(3) Criminal Appeal Act 1912 (nsw)']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Extension of Time Within Which to Apply for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the decision in Muldrock v The Queen entitled the applicant to an extension of time for leave to appeal against sentence imposed in December 2008.' 'Whether substantial injustice would result if an extension of time were refused.' 'Whether the sentencing judge erred in the way the applicable standard non-parole period was taken into account.' 'Whether the sentencing judge took into account irrelevant and inaccurate considerations in assessing objective seriousness.' 'Whether, on re-exercise of the sentencing discretion under s6(3) of the Criminal Appeal Act 1912 (NSW), a lesser sentence was warranted in law.']

Ratio Decidendi

Although Muldrock error was established in the sentencing process, the delay of about 4.5 years was substantial, the explanation was not compelling, finality and the potential for further psychological suffering by the victim weighed against an extension, and no substantial injustice would result from refusal. Ground 2 was not made out because the finding that the offence was greater than mid-range was open despite some factual inaccuracies. On re-exercise of the sentencing discretion under s6(3), having regard to the savage and sustained attack, the use of a steel clothes-stand, psychological harm, the intention element, the earlier related assault, and the need for specific and general...

Court Disposition

Application for extension of time dismissed.

Orders

  • ['Application for extension of time dismissed.']