TMTW v R [2008] NSWCCA 50

TMTW v R [2008] NSWCCA 50

The sentence imposed in respect of Count 4 was erroneous due to calculation exceeding statutory maximum and improper application of discounts; the requirement to be a registrable person under the Offenders Registration Act does not warrant mitigation under the circumstances. The overall sentence for other counts was not manifestly excessive, but the error in Count 4 warranted adjustment to achieve a correct total sentence.

Jurisdiction
Australia
Judgment Date
10 March 2008
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence dismissed for Counts 1, 2, 3, 5, 6, 7, and 8; Appeal allowed for Count 4
Legal Topics
['appeal Against Severity of Sentence' 'common Assault' 'assault Occasioning Actual Bodily Harm' 'aggravated Indecent Assault' 'malicious Wounding' 'guilty Plea' 'culpability' 'prior Good Character' 'gratuitous Cruelty' 'non Parole Period' 'extra Curial Punishment' 'sexual Offence']
['criminal Law'] ['appeal Against Severity of Sentence' 'common Assault' 'assault Occasioning Actual Bodily Harm' 'aggravated Indecent Assault' 'malicious Wounding' 'guilty Plea' 'culpability' 'prior Good Character' 'gratuitous Cruelty' 'non Parole Period' 'extra Curial Punishment' 'sexual Offence']

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Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 ['Whether sentencing judge erred in assessment of applicant’s culpability, weight given to prior good character, finding of gratuitous cruelty, calculation of non-parole period' "Whether becoming a 'registrable person' is extra curial punishment so as to reduce sentence" 'Whether indecent assault not committed for sexual gratification renders the offence less heinous' 'Whether prior good character precludes finding of gratuitous cruelty' 'Whether sentence imposed exceeded statutory maximum' 'Whether overall sentence and non-parole period were manifestly excessive']

Ratio Decidendi

The sentence imposed in respect of Count 4 was erroneous due to calculation exceeding statutory maximum and improper application of discounts; the requirement to be a registrable person under the Offenders Registration Act does not warrant mitigation under the circumstances. The overall sentence for other counts was not manifestly excessive, but the error in Count 4 warranted adjustment to achieve a correct total sentence.

Court Disposition

Appeal against sentence dismissed for Counts 1, 2, 3, 5, 6, 7, and 8; Appeal allowed for Count 4

Orders

  • ['Leave to appeal against sentence granted for Counts 1, 2, 3, 5, 6, 7, and 8' 'In each case appeal dismissed for Counts 1, 2, 3, 5, 6, 7, and 8' 'Leave to appeal granted for Count 4' 'Appeal allowed for Count 4 and sentence quashed' 'Applicant to be sentenced to imprisonment for 3 years and 8 months for Count 4,...