JM v R

Case [2008] NSWCCA 254 5 November 2008

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New South Wales
Court of Criminal Appeal

CITATION: JM v R [2008] NSWCCA 254

HEARING DATE(S): 24 October 2008

JUDGMENT DATE:
5 November 2008

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

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - series of offences - use false instrument - disposal of stolen property - additional offences - obtaining benefits by deception - stealing - pleas of guilty - discount for past assistance against co-offenders - no discount for offered future assistance - fresh evidence of significance of the assistance - whether allowance should have been made for future assistance - magnitude of offending - leave granted to appeal - appeal dismissed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Willard [2001] NSWCCA 6
Application of Antoun El Hani [2007] NSWSC 330
R v Scullion, (unreported, NSWCCA, 15 July 1992)
R v MJM [2004] NSWCCA 66

PARTIES: JM (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2007/3080

COUNSEL: I McCLINTOCK SC (Applicant)
J Girdham (Respondent)

SOLICITORS: Brett William Galloway (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0028

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

LOWER COURT DATE OF DECISION: 26 June 2007

2007/3080

McCLELLAN CJ at CL
NETTLE AJA
SIMPSON J
5 November 2008

JM v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 NETTLE AJA: I agree with Simpson J.

3 SIMPSON J: The applicant seeks leave to appeal against the severity of a series of sentences imposed upon him in the District Court on 26 June 2007 following his pleas of guilty to five charges, and his admissions, pursuant to Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) of a large number of other, related, offences.

4 Although the issue raised on the application is very narrow, it is, nevertheless, necessary to give an outline of the nature of the charges. In sum, the offences fell into five groups, all of dishonesty in one form or another. Three counts were of using a false instrument, two of disposing of stolen property. Attached to each count was a list of additional offences to be taken into account on a Form 1 under the Sentencing Procedure Act. In all, the applicant admitted his guilt of 46 additional offences. They encompassed further offences of using false instruments, obtaining benefits by deception, and stealing.

5 Each count of using a false instrument exposed the applicant to a maximum penalty of imprisonment for 10 years; each count of disposing of stolen property rendered him liable to a maximum penalty of imprisonment for 12 years. The applicant was sentenced, cumulatively, to an overall term of imprisonment with a non-parole period of 4 years and 3 months and a balance of term of 2 years and 9 months – that is, a head sentence…

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 [2008] NSWCCA 254
Case: [2008] NSWCCA 254
Decision Date: 5 November 2008

CaseChat Overview and Summary

In the matter of JM versus R, the appellant, JM, was appealing against the severity of the sentence imposed by the trial judge. JM had pleaded guilty to a series of offences, including using a false instrument, disposal of stolen property, and additional offences of obtaining benefits by deception and stealing. The appeal centred on the sentencing discount JM had received for past assistance against co-offenders, with no discount given for the offer of future assistance. JM sought to have the significance of the future assistance considered as a mitigating factor.

The court was tasked with determining whether the trial judge had erred in failing to consider the significance of the future assistance offered by JM. The appellant argued that the trial judge should have allowed for this in the sentencing process, particularly in light of the magnitude of the offending. The prosecution, however, maintained that the trial judge had exercised proper discretion in not granting any further discount.

The court found that the trial judge had not erred in not considering the future assistance as a mitigating factor. The magnitude of the offending, coupled with the appellant's criminal history, did not warrant a further discount. The court held that while the offer of future assistance was significant, it was not of such a nature that it should have altered the sentence imposed. The appeal was dismissed, and the original sentence upheld.

The court did not order any variation to the sentence imposed by the trial judge. The appellant's conviction and sentence remained as determined at first instance.

Orders