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JM v R;; R v JM

JM v R;; R v JM

Case [2017] NSWCCA 138 21 June 2017

Conviction Appeal

Fitness to be Tried

Crown Appeal Against Sentence

Manifestly Inadequate Sentence

Residual Discretion

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JM v R;; R v JM [2017] NSWCCA 138
Hearing dates: 29 May 2017
Date of orders: 21 June 2017
Decision date: 21 June 2017
Before: Hoeben CJ at CL at [1]
Garling J at [221]
Bellew J at [ 223]
Decision:
(1) In relation to the conviction appeal, leave to appeal is granted but the appeal is dismissed.
(2) In relation to the Crown appeal against sentence, the appeal is dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – historical sex offences – 14 counts of aggravated sexual assault and indecent assault – applicant convicted of 10 counts and acquitted of 4 – fitness to be tried – whether presumption of fitness to be tried was displaced – whether applicant may not have been fit to be tried – whether the appropriate tribunal acting reasonably could not conclude that the applicant was not fit to be tried – whether Presser criteria met – applicant fit to be tried – conviction appeal dismissed – CROWN APPEAL AGAINST SENTENCE – sentence of 6 years and 7 months with non-parole period of 2 years and 3 months – whether sentence manifestly inadequate – application of residual discretion – Crown appeal against sentence dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 61E, 71, 73, 76 Criminal Appeal Act 1912 (NSW) – s 5D
Criminal Procedure Act 1986 (NSW) – ss 36, 37
Evidence Act 1995 (NSW) – s 137
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
CT v R [2017] NSWCCA 15
Denham v R [2016] NSWCCA 309
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Eastman v The Queen [2000] HCA 29; 203 CLR 1
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230
Kirkwood v R [2006] NSWCCA 181
LJS v R [2015] NSWCCA 47
Magnuson v R [2013] NSWCCA 50
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Ngatayi v R [1980] HCA 18; 147 CLR 1
PH v R [2009] NSWCCA 161
Power v The Queen; Selenski v The Queen; Lyons v The Queen [1974] HCA 26; 131 CLR 623
Regina v Henley [2005] NSWCCA 126
R v Presser [1958] VR 45
R v RTI [2003] NSWCCA 283; 58 NSWLR 438
R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Tuala [2015] NSWCCA 8
Wilson v R [2017] NSWCCA 41
Woodward v R [2017] NSWCCA 44
Category: Principal judgment
Parties: JM – Applicant/Respondent
Regina – Respondent Crown/Applicant
Representation:
Counsel:
K Ginges – Applicant/Respondent
T Smith – Respondent Crown/Applicant
Solicitors:
A Luong – Applicant/Respondent
Solicitor for Public Prosecutions – Respondent Crown/Applicant

File Number(s): 2015/163974
Publication restriction: Non-publication order in relation to name of complainants or any information that might identify the complainants.

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;; R v JM

Details

AGLC: JM v R;; R v JM [2017] NSWCCA 138
Case: [2017] NSWCCA 138
Decision Date: 21 June 2017

CaseChat Overview and Summary

The applicant, JM, appealed against both their conviction and sentence following their conviction for multiple counts of aggravated sexual assault and indecent assault. The case was heard in the Court of Appeal, which also considered a Crown appeal against the sentence. The applicant had been convicted of 10 counts of aggravated sexual assault and acquitted of 4 other counts, with the remaining charges of indecent assault being withdrawn. The applicant contested the presumption of fitness to be tried, arguing that they may not have been fit to be tried at the time of the trial. The Crown, in turn, argued that the presumption of fitness was not displaced, and that any reasonable tribunal could not conclude that the applicant was not fit to be tried.

The court examined whether the criteria established in Presser v The Queen were met, which would indicate that the applicant was not fit to be tried. This involved assessing the applicant's mental state at the time of the trial and whether they had the capacity to understand the proceedings, challenge evidence, and instruct legal counsel. The court found that the applicant was fit to be tried and dismissed the conviction appeal. Regarding the sentence, the court considered whether the sentence of 6 years and 7 months, with a non-parole period of 2 years and 3 months, was manifestly inadequate. The court applied its residual discretion and determined that the sentence was appropriate, dismissing the Crown appeal against the sentence.

Consequently, the applicant's conviction appeal was dismissed, and the Crown's appeal against the sentence was also dismissed. The court upheld the original conviction and sentence, finding that the applicant was fit to be tried and that the sentence was not manifestly inadequate.

Orders