JM v R

Case [2014] NSWCCA 297 5 December 2014

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Court of Criminal Appeal
Supreme Court
New South Wales

	Amendment notes

Medium Neutral	JM v R [2014] NSWCCA 297
Citation:
Hearing dates:	21 October 2014
Decision date:	05 December 2014
Before:	Hoeben CJ at CL at [1]; R A Hulme J at [2]; Adamson J at [107]
Decision:	1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal - sentence - child sexual assault offences - child abuse material offences -- criticisms of conduct of lawyers acting for applicant on sentence not made out - unjustified reduction of discount for some pleas of guilty but no material effect on aggregate sentence - no error in discounts not being precisely quantified - claim to be in protective custody not made out - aggregate sentence not manifestly excessive CRIMINAL LAW - sentence - aggregate sentence - unnecessarily detailed approach of specifying non- parole periods and commencement dates for indicative sentences - principles and statutory provisions concerning aggregate sentencing - contentions about assessment of indicative sentences misplaced
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing Procedure) Amendment Act 2010
Cases Cited:	AB v R [2014] NSWCCA 31 Ayache v R [2013] NSWCCA 41 Behman v R [2014] NSWCCA 239 BJS v R [2013] NSWCCA 123 CL v R [2014] NSWCCA 196 Clinton v R [2009] NSWCCA 276 Cullen v R [2014] NSWCCA 162 FP v R [2012] NSWCCA 182; 224 A Crim R 82 Grealish v R [2013] NSWCCA 336 JL v R [2014] NSWCCA 130 Kentwell v The Queen [2014] HCA 37 Khawaja v R [2014] NSWCCA 80 Martin v R [2014] NSWCCA 124 Milat v R; Klein v R [2014] NSWCCA 29 PD v R [2012] NSWCCA 242 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v ABS [2005] NSWCCA 255 R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Brown [2012] NSWCCA 199 R v Burchell (1987) 34 A Crim R 148 R v Clarke [2013] NSWCCA 260 R v Evans (Court of Criminal Appeal (NSW), 24 March 1988, unrep) R v Lolesio [2014] NSWCCA 219 R v MJB [2014] NSWCCA 195 R v Nykolyn [2012] NSWCCA 219 R v Rae [2013] NSWCCA 9 R v SY [2003] NSWCCA 291 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Ryan v The Queen [2001] HCA 21; 206 CLR 267 SHR v R [2014] NSWCCA 94 Stoeski v R [2014] NSWCCA 161 Subramaniam v R [2013] NSWCCA 159 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category:	Principal judgment
Parties:	JM (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant in person Mr P Ingram SC (Crown)
Solicitors: Solicitor for Public Prosecutions
File Number(s):	2011/156968; 2012/199845
Decision under appeal	9101

Jurisdiction:

Date of Decision:	25 January 2013
Before:	Bennett SC DCJ
File Number(s):	2011/156968; 2012/199845

JUDGMENT

1 HOEBEN CJ at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JM v R

Details

AGLC: JM v R [2014] NSWCCA 297
Case: [2014] NSWCCA 297
Decision Date: 05 December 2014

CaseChat Overview and Summary

In the case of JM v R, the appellant, JM, appealed against his sentence for various child sexual assault and child abuse material offences. The appeal was heard in the High Court of Australia. JM contended that the trial judge erred in various aspects of the sentencing process, including the conduct of his lawyers, the discount for some pleas of guilty, the quantification of discounts, his placement in protective custody, and the excessiveness of the aggregate sentence.

The primary legal issues the court had to decide were whether the trial judge had erred in considering the conduct of JM's lawyers, in not precisely quantifying the discounts for some pleas of guilty, in not placing JM in protective custody, and in imposing an aggregate sentence that was manifestly excessive. The court also needed to address whether the trial judge's approach in specifying non-parole periods and commencement dates for indicative sentences was unnecessarily detailed and whether the aggregate sentence was appropriately determined under the relevant principles and statutory provisions.

The High Court held that the criticisms of the conduct of JM's lawyers on sentence were not substantiated. The court found that the trial judge's failure to precisely quantify the discounts for some pleas of guilty did not have a material effect on the aggregate sentence. The claim that JM should have been placed in protective custody was rejected, as was the contention that the aggregate sentence was manifestly excessive. The court concluded that the trial judge's approach to specifying non-parole periods and commencement dates for indicative sentences, while perhaps more detailed than necessary, did not constitute an error that affected the outcome. The appeal was ultimately dismissed.

The High Court's final orders were to dismiss the appeal and to affirm the sentence originally imposed by the trial judge.

Orders