Malcolm v The Queen - [2006] NSWCCA 323

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Malcolm v R [2006] NSWCCA 323

FILE NUMBER(S):
2006/863

HEARING DATE(S): 11/8/06

DECISION DATE: 10/10/2006

PARTIES:
Ricky Malcolm
Regina

JUDGMENT OF: Tobias JA Howie J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0975

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

COUNSEL:
J Manuell
Virginia Lydiard

SOLICITORS:
J Witmer
S Kavanagh (Public Prosecutions)

CATCHWORDS:
CRIMINAL LAW
CRIMINAL APPEAL
sentence appeal
balance between general deterrrence and rehabilitation where applicant suffers from intellectual disability
no manifest excess in sentence

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)

DECISION:
a. leave to appeal granted;
b. appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2006/863
TOBIAS JA
HOWIE J
ROTHMAN J
10 October 2006

RICKY MALCOLM v REGINA

Judgment

TOBIAS JA: I agree with Rothman J.
HOWIE J: I agree with Rothman J.
ROTHMAN J: Ricky Malcolm applies for leave to appeal the sentence imposed by his Honour Judge Blackmore of the District Court on 9 December 2005. The applicant had pleaded guilty to the offence of aggravated robbery contrary to s.95(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years’ imprisonment. He was sentenced by Blackmore DCJ to a non-parole period of 2 years’ imprisonment, to date from 22 January 2005 to 21 January 2007, and thereafter a parole period of 1 year and 4 months, expiring on 21 May 2008; the total sentence is 3 years, 4 months.
The grounds of the appeal, and application for leave to appeal, raise manifest excess in the sentence, and the balance between general deterrence and rehabilitation in circumstances where the applicant, as in this case, suffers from an intellectual disability.
The details of the facts are irrelevant but there needs to be some understanding of the nature of the offence. Essentially the offence arose when the applicant, leading two friends, assaulted the victim on a Saturday evening outside Central railway station. The applicant stole the victim’s mobile phone. The offence occurred on 22 January 2005 and it would not yet have been dark. The assault was motivated by a desire to obtain money and was totally unprovoked. It involved stalking, threatening, terrifying and assaulting the victim before robbing him.
Shortly afterwards the applicant was arrested and had in his possession the mobile phone. After initially denying that he had committed the offence, the applicant pleaded guilty.
The applicant was described in a psychologist’s report as being “probably in the borderline range” of intelligence.
The Psychologist’s Report
Ms Katie Seidler complied a psychologist’s report on the applicant. Because of the nature of the argument put, the psychologist’s report takes on a significance it might not otherwise. Ms Seidler says:
“[The applicant’s] affect was inappropriate in the sense that he impressed as being immature and he often laughed or chuckled inappropriately. He … presented as a simple person who was not particularly psychologically minded. He was both oriented and alert and did…

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 Malcolm v The Queen

Details

AGLC: Malcolm v The Queen [2006] NSWCCA 323
Case: [2006] NSWCCA 323
Decision Date: 10 October 2006

CaseChat Overview and Summary

The case of Malcolm v The Queen involved an appeal against the sentence imposed by the sentencing judge. The applicant, Malcolm, was convicted of criminal offences and had appealed the severity of the sentence on the basis that it did not adequately account for his intellectual disability. The appeal was heard by the Court of Criminal Appeal.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the applicant’s intellectual disability and the need to balance general deterrence and rehabilitation. The court had to determine if the sentencing judge had erred in failing to give sufficient weight to the applicant’s disability and the principles of rehabilitation in sentencing.

The Court of Criminal Appeal found that the sentencing judge had approached the difficult task with the proper regard to the sensitivities involved and had not made a substantial identifiable error. The court held that the sentence imposed did not display a manifest excess, and the considerations of general deterrence and rehabilitation were appropriately balanced. The court further noted that even if there was an error in failing to give adequate weight to the applicant’s disability, it did not warrant a lesser sentence under section 6(3) of the Criminal Appeal Act 1912.

The court concluded that leave to appeal should be granted but the appeal itself should be dismissed, as there was no manifest excess in the sentence imposed. The court found that the sentencing judge had appropriately balanced the competing considerations of general deterrence and rehabilitation in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, it cannot be said that a lesser sentence is warranted in law on account of such an error: s.6(3) Criminal Appeal Act 1912.Conclusion The sentence imposed by his Honour displays no substantial identifiable error. Nor is it manifestly excessive. The sentencing judge has approached an extremely difficult sentencing task with the proper regard to the sensitivities involved. I propose that leave to appeal be granted and the appeal be dismissed.

Ratio Decidendi

Legal Principle Established

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