Tatur v R [2020] NSWCCA 255

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tatur v R [2020] NSWCCA 255 Hearing dates: 23 September 2020 Date of orders: 7 October 2020 Decision date: 07 October 2020 Before: Hoeben CJ at CL at [1] Rothman J at [2] Bellew J at [77] Decision: (1) Leave to appeal granted; (2) Appeal allowed; (3) Sentence imposed on the applicant on 22 August 2019 for the offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW) is quashed; (4) The applicant is sentenced for the offence of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act 1900, to a sentence of imprisonment of 4 years, commencing 4 April 2019 and concluding 3 April 2023, with a non-parole period of 2 years' imprisonment concluding 3 April 2021. The applicant will be first eligible for parole on 3 April 2021. Catchwords: CRIME – Sentence Appeal – non-acceptance of uncontested expert evidence re intellectual disability – inappropriate use of statistics and opinion of Crown on sentence range – manifest excess in light of subjective circumstances – appeal upheld. Legislation Cited: Crimes Act 1900 (NSW), s 61J Criminal Appeal Act 1912 (NSW), s 5(1)(c) Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 DF v R [2012] NSWCCA 171; (2012) 22 A Crim R 178 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Category: Principal judgment Parties: Lionel Tatur (Applicant) Crown (Respondent) Representation: Counsel: N Mikhaiel (Applicant) K Jeffreys (Respondent)