Kizzy McClain v The Queen - [2011] NSWCCA 191

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kizzy McCLAIN v R [2011] NSWCCA 191
Hearing dates: 30 June 2011
Decision date: 30 June 2011
Before: McClellan CJ at CL at [1], [15] & [25];
Hidden J at [2];
Hall J at [18]
Decision:
Leave to appeal granted, appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - attempted armed robbery - plea of guilty - whether issue of mental health arose - whether applicant's intoxication taken into account appropriately - no question of principle
Cases Cited: R v Engert (1995) 84 A Crim R 67
R v Henry (1999) 46 NSWLR 346
Category: Principal judgment
Parties: Kizzy McClain (applicant)
Regina (Crown/respondent)
Representation: Barristers
G Brady (applicant)
S Dowling (Crown/respondent)
Solicitors
S E O'Connor - Legal Aid Commission (applicant)
S Kavanagh - Solicitor for Public Prosecutions (Crown/respondent)

File Number(s): 2009/205869
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-06-25 00:00:00

Before:

Keleman DCJ

File Number(s):

2009/205869

Judgment

McCLELLAN CJ at CL: The Court does not want to hear from you madam Crown. We are in a position to give judgement and I will ask Hidden J to give the first judgement.

HIDDEN J: The applicant, Kizzy McClain, pleaded guilty in the District Court to attempted armed robbery. She was sentenced to imprisonment for 3 years with a non-parole period of 18 months to commence on 4 January 2010. She is to be released on parole on 3 July 2011, that is, in three days time. She seeks leave to appeal against her sentence.

She is a young aboriginal woman. She was 21 years old when the offence was committed. On 23 August 2009 she went into a store in Belfield, where she was a regular customer, presented a knife and demanded money. Staff at the store resisted and she was forced from the premises and made her escape. She was affected apparently by a cocktail of drugs, methadone and benzodiazepines. The offence was anything but sophisticated, but was, nonetheless, a serious one.

She has a minor criminal history but it is of significance that she was on a s 9 bond at the time for stealing from a dwelling. She has a very disturbed background, which elicits sympathy. It need not be recited. In the light of that background it is not surprising that she developed, from a young age, a major drug and alcohol problem. She has exhibited symptoms of depression and anxiety and, from time to time, has been treated for them.

Put shortly, the application before us complained that the sentencing judge failed to give the weight it deserved to evidence of the applicant's mental condition, both as a matter bearing upon the objective gravity of the offence and as a matter in her subjective background properly to be taken into account in mitigation of the sentence.

The material bearing upon mental illness is spare, to say the least. There was a psychological report before his Honour, which records…

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 Kizzy McClain v The Queen

Details

AGLC: Kizzy McClain v The Queen [2011] NSWCCA 191
Case: [2011] NSWCCA 191
Decision Date: 30 June 2011

CaseChat Overview and Summary

The case involved Kizzy McClain who pleaded guilty to attempted armed robbery and made an application for leave to appeal against her sentence. The Court of Appeal was tasked with determining whether the trial judge had appropriately considered the issues of McClain's mental health and intoxication during the sentencing process. The crux of the appeal was whether these mitigating factors were adequately accounted for, and if there was any broader question of principle involved.

The court examined whether the trial judge had erred in not sufficiently considering the influence of McClain's mental health issues and intoxication on her actions. The appeal hinged on whether these factors warranted a different sentence and if the trial judge's failure to do so constituted a miscarriage of justice. The court also considered if there was a broader question of principle that needed to be addressed in relation to how such factors should be weighed in sentencing.

In its decision, the Court of Appeal found that the trial judge had not misapplied the law in failing to give adequate weight to the mitigating factors. The court held that there was no miscarriage of justice and no broader question of principle that needed to be addressed. As a result, the application for leave to appeal was dismissed. The court concluded that the trial judge's consideration of the mitigating factors, while not exhaustive, was sufficient under the circumstances presented.

Orders