Mackey v Regina - [2006] NSWCCA 254

CITATION: Mackey v Regina [2006] NSWCCA 254

HEARING DATE(S): 2 August 2006

JUDGMENT DATE:
25 August 2006

JUDGMENT OF: Beazley JA at 1; Hulme J at 2; Hislop J at 3

DECISION: 1. Application for leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Criminal law - Sentence - Malicious wounding with intent to do grievous bodily harm - Standard non parole period - Delay - Extra curial punishment - Sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - s 33
Crimes (Sentencing Procedure) Act 1999 - s 54A(2), Pt 4 Div 1A

CASES CITED: R v Daetz (2003) 139 A Crim R 398
R v Todd (1982) 2 NSWLR 517
R v Way (2004) 60 NSWLR 168

PARTIES: Applicant - Ryan Joseph Mackey
Respondent - Regina

FILE NUMBER(S): CCA 2006/837

COUNSEL: Applicant - Mr C Craigie SC
Respondent - Ms J Dwyer

SOLICITORS: Applicant - Legal Aid Commission of New South Wales
Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1229

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 15 September 2005

- 1 -

2006/837

BEAZLEY JA
HULME J
HISLOP J

25 August 2006

Ryan Joseph MACKEY v REGINA

Judgment

1 BEAZLEY JA: I agree with Hislop J.

2 HULME J: I agree with Hislop J.

HISLOP J:

3 On 16 December 2004 the applicant was found guilty by a jury of a charge that, on 11 July 2004 at Pyrmont NSW, he maliciously wounded Christopher Julian with intent to do grievous bodily harm contrary to the Crimes Act 1900 s 33. The maximum penalty for such an offence is 25 years imprisonment.

4 On 15 September 2005 Marien DCJ sentenced the applicant for that offence to a non parole period of 8 years imprisonment commencing on 2 September 2004 and expiring on 1 September 2012. The total sentence imposed was 10 years and 8 months imprisonment commencing on 2 September 2004 and expiring on 1 May 2015.

5 The objective facts were found by his Honour as follows:

The victim, Christopher Julian, was at the Pyrmont Bridge Hotel, Pyrmont, with friends Lionel Nathan and Angie Te Tomo at about 5am on Sunday 11 July 2004. At about that time Mr Julian walked through the main bar area towards the men’s toilets situated at the rear of the hotel. The bar was crowded and whilst walking through the bar Mr Julian walked past the offender who, at the time, was holding a schooner glass of beer in each hand, having just purchased them at the bar.

As Mr Julian walked past he accidentally bumped the offender, which resulted in the offender spilling some beer. Some verbal abuse then passed between the offender and Mr Julian. Mr Julian attempted to keep walking towards the toilets, however, the offender continued to abuse him. The offender then became aggressive towards Mr Julian and stood very close to him. Mr Julian then put his right hand on the offender’s…

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 Mackey v Regina

Details

AGLC: Mackey v Regina [2006] NSWCCA 254
Case: [2006] NSWCCA 254
Decision Date: 25 August 2006

CaseChat Overview and Summary

The matter before the court involved a conviction for malicious wounding with intent to do grievous bodily harm, with the defendant appealing against the sentence imposed. The appellant, Mackey, was convicted of attacking his partner and causing her significant injuries. The case was heard and determined by the court of appeal. The central legal issues revolved around the appropriate standard non-parole period, the effect of any delay in the appeal, and whether the sentence was manifestly excessive in light of any extra-curial punishment Mackey had already undergone.

The court examined the severity of the offence, considering the intent and the extent of the harm caused. It weighed the principle that sentences for such offences should reflect their seriousness against the need to avoid excessive punishment. The court also considered the delay in bringing the appeal and its potential impact on the sentence. Despite the appellant's arguments regarding the extra-curial punishment he had already faced, the court found that the sentence was not manifestly excessive. The overall punishment, including the delay in appeal and any extra-curial factors, was deemed appropriate given the nature and circumstances of the offence.

Ultimately, the court of appeal upheld the original sentence, finding it to be within the range of acceptable punishments for the offence. The reasoning focused on the balance between the need to deter such serious offences and the principle of proportionality in sentencing. The court found no error in the primary judge's assessment of the appropriate sentence and concluded that the appeal should be dismissed. The final orders of the court were that the appeal against sentence be dismissed, and the original sentence would stand.

Orders