R v Tonari [2014] NSWCCA 232

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Tonari [2014] NSWCCA 232 Hearing dates: 20/06/2014 Decision date: 29 October 2014 Jurisdiction: Criminal Before: Johnson J at [1] Harrison J at [2] Garling J at [3] Decision: Crown appeal dismissed Catchwords: CRIMINAL LAW - appeal - sentence - Crown appeal - five offences against Crimes Act 1900, s 61I - two offences against Crimes Act 1900, s 61L - aggregate sentence - head sentence 4 years - non-parole period of 2 years 6 months - CRIMINAL LAW - appeal - sentence - whether sentencing judge failed to give proper consideration to accumulation, concurrency and the principle of totality - indicative sentences - finding offences were part of overall act of sexual aggression - need to acknowledge separate harm done by different criminal acts - reasons for accumulation and concurrency explained by indicative sentences - reference to totality - no discrete error of law - CRIMINAL LAW - appeal - sentence - whether sentencing judge failed to give any weight to personal deterrence and general deterrence - not specifically identified - referred to objects of sentencing - particular of manifest inadequacy - no discrete error of law - CRIMINAL LAW - appeal sentence - manifest inadequacy; whether - specific and general deterrence - not likely to re-offend - good prospects of rehabilitation - delay after verdict - length and terms of bail - factors to be taken into consideration - strong subjective case - objective seriousness - not above mid-range - aggravating factors - offences occurred in victim's home - accumulation - each offence individually serious - variation of statutory ratio - manifestly lenient - error of law - CRIMINAL LAW - appeal - sentence - residual discretion not to intervene - evidence on appeal - hardship in custody - obsessive-compulsive disorder - no medical treatment - victim of assaults - limited English - difficulty communicating - lengthy and difficult time on bail awaiting sentence - residual discretion exercised - appeal dismissed Legislation Cited: Criminal Appeal Act 1912 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022 Butler v R [2012] NSWCCA 23 Church v R [2012] NSWCCA 149 Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 Tonari v R [2013] NSWCCA 232 Category: Sentence Parties: The Crown (Appellant) Nobutomo Tonari (Respondent) Representation: Counsel: V Lydiard (Appellant) H Dhanji SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Yukio Hayashi & Associates (Respondent) File Number(s): 2011/195938 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-12-10 00:00:00 Before: Phegan ADCJ