TC v REGINA [2009] NSWCCA 296

New South Wales Court of Criminal Appeal

CITATION: TC v REGINA [2009] NSWCCA 296

HEARING DATE(S): Thursday 24 September 2009

JUDGMENT DATE: 16 December 2009

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Hall J at 3

Leave to appeal granted. DECISION: The appeal is upheld. The sentences imposed in the District Court be quashed and in lieu thereof the applicant is to be re-sentenced to a non-parole period of five years commencing on 12 February 2008 and expiring on 11 February 2013 and thereafter to a parole period of six years to commence on 12 February 2013 and to expire on 11 February 2019. The earliest date upon which the applicant will be eligible for release on parole will be 11 February 2013.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – whether sentencing judge failed to take into account the applicant's pattern of serious drug abuse – the applicant's substance abuse was a relevant matter for consideration on sentence as an integral factor in his dysfunctional condition – whether sentencing judge failed to have regard to applicant's mental health – the sentencing judge limited consideration to the causal question as to whether there was a link between the applicant's dysfunctional condition and the offence – the sentencing judge failed to have regard to the applicant's psychological or psychiatric problems in evaluating the subjective circumstances of the applicant at the time of offending – appeal upheld – applicant re-sentenced

Children (Criminal Proceedings) Act 1987 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

KT v Regina [2008] NSWCCA 51 Regina v Benetiz [2006] NSWCCA 21 Regina v Hemsley [2004] NSWCCA 228 CASES CITED : Regina v Henry (1999) 46 NSWLR 346 Regina v Qutami (2001) 127 A Crim R 369 Regina v Todorovic [2008] NSWCCA 49 Regina v Way (2004) 60 NSWLR 168 SS v Regina [2009] NSWCCA 114