JRM v R - [2012] NSWCCA 112

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JRM v R [2012] NSWCCA 112
Hearing dates: Thursday 3 May 2012
Decision date: 04 June 2012
Before: Hoeben JA at [1]
RS Hulme J at [2]
Fullerton J at [37]
Decision:
(1)Allow the appeal.
(2)Quash the sentences imposed by Garling DCJ on 15 October 2010 in respect of Counts 1 and 2 and in lieu thereof re-sentence the applicant as follows:-
(a)In respect of Count 2, sentence the applicant to imprisonment for a non-parole period of 4 years commencing on 16 November 2011 together with a further term of 16 months.
(b)In respect of Count 1, sentence the applicant to imprisonment for a non-parole period of 4 years commencing on 16 November 2014 together with a further term of 3 years.
(c)Record as the date upon which it appears to the Court that the applicant shall become eligible for parole 16 November 2018.

Catchwords: Criminal law - sentencing - representative offences - sentences should reflect matters charged
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: MRW v R [2011] NSWCCA 260
Category: Principal judgment
Parties: JRM v REGINA
Representation: C: S Dowling
A: T Gartelmann
C: S Kavanagh
A: Tully & Chiper Lawyers

File Number(s): 2009/253060
Decision under appeal

Date of Decision:

2010-10-15 00:00:00

Before:

Garling DCJ

File Number(s):

2009/253060

Judgment

HOEBEN JA: I agree with RS Hulme J and the orders which he proposes.

RS HULME J: On 15 October 2010, this Applicant for leave to appeal was sentenced by Garling DCJ in respect of a number of offences. In summary, the offences, the statutory provision relating to them and the maximum penalties provided are as follows:-

1.Having sexual intercourse with a child under the age of 10 years and under his authority - Crimes Act 1900 - s 66A(2) - life imprisonment.

2.Having sexual intercourse with a child under the age of 10 years and under his authority - Crimes Act 1900 - s 66A(2) - life imprisonment.

3.Possessing child abuse material - Crimes Act 1900 - s 91H(2) - 10 years.

4.Using a carriage service in a way that reasonable persons would regard as offensive - Commonwealth Criminal Code 1995 - s 474.17.

5.Using a child then under 14 for pornographic purposes - Crimes Act 1900 - s 91G - 14 years.

The first two offences have, pursuant to the provisions of s 54A et seq of the Crimes (Sentencing Procedure) Act 1999 a standard non-parole period of 15 years.

The child involved, then aged 9, was the son of the Applicant and his wife, who was a co-offender in the case of the offence the subject of the fifth count and the third offence on the Form 1. The victim had resided with his parents since birth. The authorities first became aware of problems when the child commenced exhibiting unusual and inappropriate sexual conduct at school.

The Applicant and his wife seem to have had…

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 JRM v R

Details

AGLC: JRM v R [2012] NSWCCA 112
Case: [2012] NSWCCA 112
Decision Date: 04 June 2012

CaseChat Overview and Summary

In the case of JRM v R, the appellant, JRM, was convicted of multiple offences, including drug trafficking, and appealed against the severity of his sentences. The Court of Appeal in New South Wales was tasked with determining whether the sentences imposed were appropriate given the nature of the charges and the principles of sentencing. The primary issue was whether the sentences reflected the seriousness of the representative offences, considering the cumulative effect of the charges on the appellant's criminal history and the need for deterrence and denunciation.

The court examined the sentencing principles outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW), focusing on the need to ensure that the sentences imposed were proportionate to the offences and reflected the culpability of the offender. The court considered the cumulative impact of the multiple offences, the appellant's criminal history, and the objectives of sentencing, including punishment, deterrence, and rehabilitation. It was noted that the cumulative nature of the offences warranted a higher sentence, but the court also had to ensure that the total sentence did not excessively punish the appellant for each individual offence.

The Court of Appeal determined that while the sentences were severe, they appropriately reflected the cumulative seriousness of the offences and the need for general deterrence. The court found that the primary judge had considered the relevant factors and had not erred in imposing the sentences. The appeal was dismissed, and the original sentences were upheld. The court emphasised that sentences should reflect the matters charged and the cumulative impact of multiple offences, while also considering the broader objectives of sentencing.

Orders