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[2004] NSWCCA 373
Court of Criminal Appeal (NSW)
2004-11-01
Grove J, Buddin J, Hoeben J
Original judgment source is linked above.
Last Modified: 11/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
R
Teoka & Ors
CITATION : R v Teoka & Ors [2004] NSWCCA 373 HEARING DATE(S) : 16/10/04 JUDGMENT DATE : 1 November 2004
CATCHWORDS : Parity of sentences, age of offenders, relative culpability, lack of remorse Children's (Criminal Proceedings) Act 1987 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Henry (1999) 46 NSWLR 346 CASES CITED : R v Voss [2003] NSWCCA 182 R v Weldon & Carberry (2002) 136 ACrim R 55 Tyrone Teoka - Applicant PARTIES : Aaron Glen Lloyd - Applicant ADM - Applicant Crown - Respondent FILE NUMBER(S) : CCA 2004/1769; 2004/1883; 2004/1709 Ms D Woodburne - Crown COUNSEL : Mr R Hulme SC - Applicant Teoka Mr RJ Button - Applicant Lloyd Mr H Dhanji - Applicant ADM S Kavanagh, Solicitor for Public Prosecutions - Crown SOLICITORS : S O'Connor, Legal Aid Commission - Applicant Teoka S O'Connor, Legal Aid Commission - Applicant Lloyd Giddy & Crittenden - Applicant ADM
Remarks on sentence Mr Teoka 36 Despite the lateness of the plea of guilty, his Honour allowed a discount of 20% for the guilty plea. In due course his Honour applied that discount to a sentence of 12 years 6 months. 37 His Honour analysed the culpability of the three applicants and determined that it was similar, although he thought ADM was more culpable than the other two. His Honour noted that Mr Teoka was the first of the applicants to set upon Mr White and knock him to the ground. He thought Mr Teoka may have punched and kicked Mr White more than the other two because his clothing had more blood on it. When he approached Mr White, his intention was to "bash him" rather than to rob him. 38 Having carefully examined the evidence his Honour concluded that on the night of the offence, Mr Teoka experienced real remorse for what he had done to Mr White. 39 In considering the objective seriousness of the offence his Honour noted that the legislature had fixed a maximum penalty of 25 years. His Honour assessed the offence as "very high on the scale of seriousness for this kind of offence even though … not in the very worst category". His Honour characterised the attack as pitiless and savage involving a high level of gratuitous violence and cruelty. The offence required a large measure of personal deterrence and general deterrence as a warning to others who might harbour thoughts of similar attacks. 40 In considering the application of s21A of the Crimes (Sentencing Procedure) Act 1999 (the Act) his Honour noted that the offence involved "the actual use of a considerable degree of violence". His Honour noted that Mr Teoka did have a criminal record but there was a gap between 1997, 2001 and 2002 in relation to those offences. This offence was committed while Mr Teoka was on bail. The offence was committed in company and considerable physical and emotional injury was caused to Mr White. 41 By way of mitigating factors, the offence was not part of a planned or organised criminal activity and in relation to Mr Teoka, there were very real prospects for rehabilitation. There was genuine remorse on the part of Mr Teoka which had arisen soon after the offence. Until the series of traumatic events affecting his partner's family and his relationship with his partner, he had been in regular employment and had performed a significant amount of work over the years. His Honour noted that upon his release, Mr Teoka intended to go back to his old place of work and to try to make it up to his young son whom he felt he had let down. The prospects of successful rehabilitation were good. 42 Because of the subjective issues which had been identified, his Honour found special circumstances. His Honour noted that Mr Teoka had given himself up to the police. Although he had prior convictions for violence, Mr Teoka was not "usually what he described as a 'kicking person'". Mr Teoka acknowledged that he had an alcohol problem. 43 In spite of the fact that Mr Teoka was older than the other applicants, and despite the fact that he instigated the attack, his Honour assessed Mr Teoka as being slightly less culpable than ADM. Taking those matters into account, his Honour sentenced Mr Teoka to a total term of 10 years with a non-parole period of 6 years. In doing so, his Honour said: "I have compared the sentences in a number of other cases to the present one. I have been assisted in particular by the decision of the Court of Criminal Appeal on a Crown appeal in the case of R v Weldon and R v Carberry [2000] NSWCCA 475 which in my view is a generally similar case but recognising that no two cases are identical. That being a Crown appeal, in my view set the benchmark for the lower end of the scale. According to the facts of those cases, I have found those cases helpful by way of comparison in setting these sentences."
(1999) 46 NSWLR 346