TMTW v R [2008] NSWCCA 50

New South Wales Court of Criminal Appeal

CITATION: TMTW v R [2008] NSWCCA 50

HEARING DATE(S): 29 January 2008

JUDGMENT DATE: 10 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; James J at 2; Simpson J at 3

DECISION: In respect of Counts 1, 2, 3, 5, 6, 7 and 8: (1) Leave to appeal against sentence granted; (2) In each case appeal dismissed; In respect of Count 4: (1) Leave to appeal granted; (2) Appeal allowed and sentence quashed; (3) In lieu thereof the applicant be sentenced to imprisonment for 3 years and 8 months made up of a non-parole period of 1 year and 8 months commencing on 11 January 2008 and expiring on 10 September 2009, and the balance of term of 2 years, expiring on 10 September 2011.

CATCHWORDS: CRIMINAL LAW – appeal against severity of sentence – series of offences – common assault – assault occasioning actual bodily harm – aggravated indecent assault – malicious wounding – pleas of guilty – whether sentencing judge erred in assessment of 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 – indecent assault not committed for sexual gratification does not render the offence less heinous – prior good character does not preclude finding of gratuitous cruelty – starting point of sentence beyond maximum applicable – non-parole period properly determined given overall criminality

LEGISLATION CITED: Child Protection (Offenders Registration) Act 2000 Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398 R v Fahda (Court of Criminal Appeal, 31 August 1999, unreported) R v Glen (Court of Criminal Appeal, 19 December 1994, unreported) CASES CITED : R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v Pearce [1998] HCA 57; 194 CLR 610 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168