M O v Regina - [2014] NSWCCA 11

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: M O v REGINA [2014] NSWCCA 11
Hearing dates: 12 February 2014
Decision date: 12 February 2014
Before: Emmett JA at [29]
Hall J at [28]
RS Hulme AJ at [1]
Decision:
(i) Grant leave to appeal
(ii) Allow the appeal;
(iii) Quash the sentence imposed by Lakatos DCJ on 8 November 2013;
(iv) Order that the Applicant be discharged upon her entering a good behaviour bond for a period of 1 year from the date it is entered into.

Catchwords: CRIMINAL LAW - sentencing -appeal against sentence -sentence was manifestly excessive - appeal allowed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Category: Principal judgment
Parties: M O (Applicant)
Regina (Respondent)
Representation: Counsel:
T Smith (Crown)
R Rigg (Applicant)
Solicitors:
S Kavanagh (Crown)
S. E. O'Connor (Applicant)

File Number(s): 2013/8891
Publication restriction: None
Decision under appeal

Citation:

R v MO

Date of Decision:

2013-11-08 00:00:00

Before:

Lakatos DCJ

File Number(s):

2013/8891

Judgment

RS HULME AJ: On 8 November 2013 Lakatos DCJ sentenced the offender and a co-offender JB in respect of an offence of, on 10 January 2013 detaining SW without her consent with the intent of committing a serious indictable offence, namely, actual bodily harm in company in circumstances of special aggravation, namely, them being in company with (each other) and PM, and at the time actual bodily harm was occasioned to SW.

The offence is one arising under s 86(3) of the Crimes Act 1900 and rendered the applicant liable to imprisonment for 25 years.

At the time, the applicant was aged fifteen and eight months and JB was something under a year older and SW seems to have been aged 19.

The sentence imposed on the applicant was imprisonment for 18 months commencing on 8 November 2013, including a non-parole period of 9 months. The sentence imposed on JB was imprisonment for 2 years including a non-parole period of 1 year commencing on 1 June 2013. His Honour observed that this date was when JB went into custody for other matters and "there is a large element of leniency involved in making those entirely concurrent".

The grounds of appeal are:

(1) His honour failed to take into account the fact of the applicant having a five month old baby when sentenced

(2) The sentence is manifestly excessive

(3) There is a marked disparity between the sentence imposed on the applicant and that imposed on her co-offender JB, giving rise to a justifiable sense of grievance of the part of the applicant.

The circumstances of the offence are that all persons were in PM's flat. PM told SW to leave. When SW did she was pursued by PM. PM, then in company with JB, sat SW down on a brick wall where SW was punched in the face twice by PM and three times by JB. These persons then walked SW back into the flat, in the course of which exercise JB…

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 M O v Regina

Details

AGLC: M O v Regina [2014] NSWCCA 11
Case: [2014] NSWCCA 11
Decision Date: 12 February 2014

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, M O, against a sentence imposed by the County Court of Victoria. The appellant was convicted of possessing a firearm without a licence, possessing a firearm while under a weapons prohibition order, and possessing a firearm while disqualified from possessing a firearm. The appeal was focused on the severity of the sentence, which the appellant claimed was manifestly excessive. The Crown did not oppose the appeal on the ground of excessiveness, instead arguing that the appeal should be dismissed due to procedural errors by the appellant.

The central legal issue was whether the sentence imposed by the County Court was manifestly excessive. This required the court to balance the appellant's culpability and the need for deterrence and denunciation against the principle that a sentence should not be higher than necessary. The court had to consider the principles of sentencing set out in the Sentencing Act 1991 (Vic), particularly the requirement to ensure that a sentence is proportionate to the seriousness of the offence and the offender.

In evaluating the sentence, the court noted that the appellant had a history of offending and was subject to a weapons prohibition order at the time of the offence. Despite this, the court found that the sentence of four years imprisonment with a non-parole period of two years and eight months was manifestly excessive. The court observed that the appellant's culpability was not so high as to warrant such a lengthy sentence, particularly given the absence of any aggravating factors such as the use or threatened use of the firearm. The court concluded that the sentence did not strike an appropriate balance between the objectives of punishment and the specific circumstances of the case. Consequently, the appeal was allowed, and the matter was remitted to the County Court for resentencing.

Orders