This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Criminal Appeal
New South Wales
Case Title:
Magnuson v R
Medium Neutral Citation:
[2013] NSWCCA 50
Hearing Date(s):
22 October 2012
Decision Date:
01 March 2013
Before:
McClellan CJ at CL at [1] Bellew J at [2] Button J at [3]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal against sentence allowed.
(3) Quash the commencement date of the nine sentences imposed for the offences committed against LM.
(4) In substitution all of the nine sentences imposed for the offences committed against LM are to commence on 26 February 2012.
(5) Quash the commencement date of the four sentences imposed for the offences committed against JM.
(6) In substitution all of the four sentences imposed for the offences committed against JM are to commence on 26 August 2013.
(7) Quash the non-parole period of 6 years of the sentence imposed for the offence of rape committed against JM and contained in count 3 of the indictment.
(8) In substitution impose a new non-parole period for the offence of rape committed against JM and contained in count 3 of the indictment of imprisonment for 5 years, to commence on 26 August 2013 and expire on 25 August 2018.
(9) The new date upon which the applicant is first eligible for release on parole is 25 August 2018.
Catchwords:
CRIMINAL LAW - leave to appeal against sentence - error in approach to aggravating features contained in s 21A Crimes (Sentencing Procedure) Act 1999 - error in approach to s 21A(2)(ea) - error in approach to s 21A(2)(m)
CRIMINAL LAW - leave to appeal against sentence - old child sex offences - whether pattern of sentencing existed - no failure to reflect past sentence length in individual sentences - individual sentences not manifestly excessive - wholly cumulative sentences not in accordance with past sentencing practices - re-sentence in accordance with past practices
[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.
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AGLC
Magnuson v R [2013] NSWCCA 50
Case
[2013] NSWCCA 50
Decision Date
CaseChat Overview and Summary
In the case of Magnuson v R, the appellant challenged the sentence imposed by the Supreme Court of New South Wales for historical child sex offences. The court was required to determine whether the sentencing judge had erred in applying the aggravating features under section 21A of the Crimes (Sentencing Procedure) Act 1999, and whether there was a failure to reflect the past sentence length in individual sentences, as well as whether the sentences were manifestly excessive or wholly cumulative.
The court held that the sentencing judge had erred in applying section 21A(2)(ea) and 21A(2)(m) of the Act, which pertain to the aggravating features of the offence. The court found that there was no pattern of sentencing for historical child sex offences in New South Wales that required the sentences to be wholly cumulative. The court also found that the individual sentences were not manifestly excessive, and that the wholly cumulative sentences were not in accordance with past sentencing practices. As a result, the court granted leave to appeal against the sentence and ordered a re-sentencing in accordance with past practices.
The court's decision highlights the importance of properly applying the aggravating features under section 21A of the Crimes (Sentencing Procedure) Act 1999 and ensuring that sentences for historical child sex offences are in accordance with past sentencing practices. The court's re-sentencing order demonstrates the court's commitment to ensuring that sentences are fair and proportionate to the offence committed.