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Maglis v R

Maglis v R

Case [2010] NSWCCA 247 15 November 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Maglis v R [2010] NSWCCA 247

FILE NUMBER(S):
2008/7691

HEARING DATE(S):
28 October 2010

JUDGMENT DATE:
15 November 2010

PARTIES:
Michael John MAGLIS - Applicant
Regina - Crown/Respondent

JUDGMENT OF:
Handley AJA Adams J Howie AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/00007691

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ RFD QC

LOWER COURT DATE OF DECISION:
1 February 2010

COUNSEL:
Mr K Averre - Applicant
Ms S Dowling - Crown/Respondent

SOLICITORS:
SE O’Connor, Legal Aid - - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Crown/Respondent

CATCHWORDS:
Proceedings after conviction – Appeal – Sentence – application of totality principle – partly cumulative sentences – finding of special circumstances not reducing over all non-parole period.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, s 44
Crimes Act 1900, s 97(1),(2)

CATEGORY:
Principal judgment

CASES CITED:
Lesi [2010] NSWCCA 240
Nahlous v R [2010] NSCCA 58
Schembri v R [2010] NSWCCA 142
Taufahema [2010] NSWCCA 241

TEXTS CITED:

DECISION:
1. The application for leave be granted and the appeal be allowed in part.
2. The sentences for counts 3 and 4 are quashed.
3. In lieu the applicant is sentenced as follows:
(a) On count 3 a term of imprisonment made up of a non-parole period commencing on 9 November 2010 and expiring on 4 June 2013 with a balance of term to expire on 28 March 2016.
(b) On count 4 a term of imprisonment made up of a non-parole period commencing on 9 November 2010 and expiring on 4 June 2013 with a balance of term to expire on 28 March 2016.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/07691
HANDLEY AJA
ADAMS J
HOWIE AJ
MONDAY 15 NOVEMBER 2010

Michael John MAGLIS v R

Judgment

HANDLEY AJA: I agree with Howie AJ.
ADAMS J: I agree with Howie AJ.
HOWIE AJ: The applicant seeks leave to appeal against sentences imposed in the District Court by Finnane DCJ following upon the applicant pleading guilty to four counts on an indictment. The first, second and fourth counts alleged an offence of armed robbery contrary to s 97(1) of the Crimes Act 1900. The third count alleged an attempt to commit an armed robbery with a dangerous weapon contrary to s 97(2) of that Act. An offence of armed robbery carries a maximum penalty of imprisonment for 20 years. An offence of armed robbery with a dangerous weapon carries a maximum penalty of 25 years imprisonment.
There were also two Form 1 schedules. The first contained an offence of knowingly deal with the proceeds of crime and was to be taken into account when sentencing on Count 1. The second Form 1 contained an offence of armed robbery and was to be taken into account when sentencing on Count 3.
Although the pleas were taken on 30 September 2008, the applicant was not sentenced until 1 February 2010. On that date the applicant was sentenced to a total period…

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 Maglis v R

Details

AGLC: Maglis v R [2010] NSWCCA 247
Case: [2010] NSWCCA 247
Decision Date: 15 November 2010

CaseChat Overview and Summary

The case of Maglis v R involved an appeal by the defendant against his sentence imposed following his conviction for certain criminal offences. The court was required to consider whether the trial judge had correctly applied the totality principle in sentencing and whether the finding of special circumstances had appropriately influenced the overall non-parole period.

The central legal issue before the court was the proper application of the totality principle in sentencing, particularly in relation to the imposition of partly cumulative sentences. The court needed to determine whether the trial judge had appropriately balanced the principles of punishment, deterrence, and rehabilitation in arriving at the final sentence. Additionally, the court had to assess whether the trial judge correctly identified special circumstances that warranted consideration in determining the non-parole period.

The court concluded that the trial judge had adequately considered the totality principle in imposing the sentence. It found that the sentences, while partly cumulative, were justified by the nature and gravity of the offences committed. The court also held that the trial judge had correctly identified special circumstances but determined that these did not warrant a reduction in the overall non-parole period. The appeal was thus dismissed, with the original sentence upheld.

No further orders were made by the court. The defendant's appeal against his sentence was unsuccessful, and he remained subject to the original sentence imposed by the trial judge.

Orders