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Madden v R

Madden v R

Case [2011] NSWCCA 254 29 November 2011

Aggravated & Exemplary Damages

Appeal

Sentencing

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Madden v R [2011] NSWCCA 254
Hearing dates: 15 November 2011
Decision date: 29 November 2011
Before: Whealy JA at [1]
Simpson J at [2]
Hislop J at [39]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - aggravated break enter and commit serious indictable offence - serious indictable offence of stealing - circumstance of aggravation being in company - plea of guilty - delay of 20 months between offence and arrest - applicant sentenced during intervening period for offences subsequently committed - grounds of appeal assert failure properly to take into account delay and principle of totality - history of incarceration - extent to which sentences may have been imposed concurrently if dealt with together - no evidence before sentencing judge regarding the other offences - not the role of a sentencing judge to make independent inquiries - no error in approach demonstrated - emphasis on the standard non-parole period - no error of the kind in Muldrock v The Queen demonstrated - leave to appeal granted - appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Way v The Queen [2004] NSWCCA 131; 60 NSWLR 168
Muldrock v The Queen [2011] HCA 39
Category: Principal judgment
Parties: Trent Madden (Appellant)
Regina (Respondent)
Representation: Counsel
G Corr (Applicant)
T Smith (Respondent)
Solicitors
Aboriginal Legal Service (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 09/267599
Decision under appeal

Jurisdiction:

9101

Citation:

[2010] NSWDC 337

Date of Decision:

2010-11-05 00:00:00

Before:

Berman DCJ

File Number(s):

09/267599

Judgment

WHEALY JA : I agree with Simpson J

SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 5 November 2010 following his plea of guilty to a single count of aggravated break, enter and commit serious indictable offence. The serious indictable offence was stealing. The circumstance of aggravation was that the applicant committed the offence whilst in company.

Pursuant to s 112(2) of the Crimes Act 1900, the offence carries a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act "), it carries a standard non-parole period of five years. However, as will be explained below, the standard non-parole period can be put to one side. Berman DCJ sentenced the applicant to imprisonment for 4 years and 6 months, commencing on 30 November 2009, and ending on 29 May 2014, with a non-parole period of 2 years and 6 months which will expire on 29 May 2012. In doing so, he allowed, in respect of the plea of guilty and pursuant to the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 a reduction of 25%; and, pursuant to…

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 Madden v R

Details

AGLC: Madden v R [2011] NSWCCA 254
Case: [2011] NSWCCA 254
Decision Date: 29 November 2011

CaseChat Overview and Summary

The case of Madden v R involved the applicant, who pleaded guilty to committing a serious indictable offence of stealing while being in the company of others, which constituted an aggravated break and enter. The court of appeal considered an application for leave to appeal against the sentence imposed on the applicant, who was already serving a sentence for other offences committed in the intervening period between the original offence and his arrest. The legal issues before the court included whether the delay in sentencing and the principle of totality had been properly considered and whether the sentences could have been imposed concurrently had they been dealt with together. The applicant argued that the delay in sentencing should have been taken into account, and that the principle of totality should have been applied to ensure that the sentences did not overlap unnecessarily.

The court found that there was no evidence before the sentencing judge regarding the other offences, and that it was not the role of the sentencing judge to make independent inquiries into other matters not before them. The court held that the applicant had not demonstrated any error in the approach taken by the sentencing judge, particularly in relation to the standard non-parole period. The court noted that the sentencing judge had emphasised the standard non-parole period and had not made any error of the kind demonstrated in Muldrock v The Queen. The court also considered the applicant's history of incarceration and the extent to which sentences may have been imposed concurrently if dealt with together. Ultimately, the court concluded that there was no error in the approach demonstrated by the sentencing judge, and that leave to appeal should be granted but the appeal dismissed.

The final orders of the court were that leave to appeal against sentence was granted, but the appeal was dismissed. The court held that there was no error in the approach taken by the sentencing judge, and that the applicant had not demonstrated any grounds for appeal. The court emphasised the importance of the principle of totality and the standard non-parole period in sentencing, and noted that it was not the role of the sentencing judge to make independent inquiries into other matters not before them. The court also noted that the applicant had a history of incarceration and that the sentences may have been imposed concurrently if dealt with together, but that this was not a sufficient ground for appeal in the circumstances of this case.

Orders