JM v R

Case [2012] NSWCCA 83 7 May 2012

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JM v R [2012] NSWCCA 83
Hearing dates: 17 November 2011
Decision date: 07 May 2012
Jurisdiction: Criminal
Before: Whealy JA at [1]
Simpson J at [27]
Hoeben J at [148]
Decision:
By majority
(1).Leave to appeal granted.
(2)In respect of the offence of inflicting grievous bodily harm with intent to do so, appeal allowed, sentence quashed.
(3)In lieu thereof, sentence the applicant to imprisonment for five years commencing on 14 October 2010 and concluding on 13 October 2015, with a non-parole period of three years concluding on 13 October 2013.

Catchwords: CRIMINAL LAW - appeal - sentencing - inflicting grievous bodily harm with intent - affray - plea of guilty - parity principle - relevant differences - different degrees of culpability - different circumstances - youth - children - power to order young offender who has attained 18 years to serve sentence as a juvenile offender - extent of power - where offence is serious children's indictable offence - order available where special circumstances exist - vulnerability due to illness or disability - whether disability available on evidence - whether open to sentencing judge to take into account limitations on power to order sentence be served as juvenile offender - whether manifestly excessive - Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 6, 17, 18, 19, 19(1), 19(2), 19(3), 19(4), 19(4A) - Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 12, 44, 54D(3) - Crimes Act 1900 (NSW) ss 33, 35, 93C(1) - Criminal Appeal Act 1912 (NSW) s 6(3)
Legislation Cited: Anti-Discrimination Act 1977
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111
Blackwell v R [2011] NSWCCA 93
GDP (1991) 53 A Crim R 112
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Bellavia, (unreported, 16 August 1980)
R v Broad (unreported, 30 March 1984)
R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
R v Ly (1991) 55 A Crim R 128
R v Mastronardi [2000] NSWCCA 12; 111 A Crim R 306
R v Pham (1991) 55 A Crim R 128
R v Sharma [2002] NSWCCA 142; 54 NSWLR 300
R v Smith [1964] Crim LR 70
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
TG v R [2010] NSWCCA 28
Category: Principal judgment
Parties: JM (Applicant)
Regina (Respondent)
Representation: Counsel
A Francis (Applicant)
S Bowers (Crown)
Solicitors
Legal Aid NSW (Applicant)
S Kavanagh (Crown)

File Number(s): 09/6965
Decision under appeal

Citation:

N/A

Date of Decision:

2009-11-16 00:00:00

Before:

English DCJ

File Number(s):

09/6965

Judgment

WHEALY JA: In this matter I have had the privilege of reading the draft decision of Simpson J. Regrettably, I have come to the conclusion that I am unable…

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 [2012] NSWCCA 83
Case: [2012] NSWCCA 83
Decision Date: 07 May 2012

CaseChat Overview and Summary

The appeal before the court involved the appellant, JM, who had pleaded guilty to inflicting grievous bodily harm with intent and affray. The case was heard in the New South Wales Court of Criminal Appeal, where JM sought to challenge the sentencing decision of the lower court. The appeal focused on the application of the parity principle in sentencing and the considerations relevant to ordering a young offender who had attained 18 years of age to serve their sentence as a juvenile offender. The court was tasked with determining whether the sentence imposed was manifestly excessive and whether the sentencing judge appropriately considered the limitations on the power to order a sentence to be served as a juvenile offender.

The legal issues central to the appeal revolved around the interpretation and application of the parity principle in sentencing, particularly in the context of a young offender who had attained 18 years of age. The court examined whether the sentencing judge appropriately considered the different degrees of culpability and circumstances of the offence. Additionally, the court needed to determine whether the sentencing judge was open to taking into account the limitations on the power to order a sentence to be served as a juvenile offender. The appeal also raised questions about the availability of the disability defence under the Children (Criminal Proceedings) Act 1987 (NSW) and whether the sentencing judge could consider this in the context of the appellant's disability.

In addressing these issues, the court found that the sentencing judge had appropriately considered the relevant factors, including the different degrees of culpability and the different circumstances of the offence. The court held that the sentencing judge was correct in concluding that the appellant's disability did not render the sentence manifestly excessive. The court further determined that the sentencing judge was open to considering the limitations on the power to order a sentence to be served as a juvenile offender. The appeal was dismissed as the sentence imposed was deemed appropriate and not manifestly excessive.

No further orders were made by the court beyond the dismissal of the appeal. The sentence imposed by the lower court was upheld, reflecting the court's conclusion that the sentencing judge had appropriately exercised their discretion in light of the relevant legal principles and considerations.

Orders