Many v The Queen - [2021] NSWCCA 302

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Many v R [2021] NSWCCA 302
Hearing dates: 3 September 2021
Date of orders: 14 December 2021
Decision date: 14 December 2021
Before: Simpson AJA at [1];
Adamson J at [9];
Lonergan J at [26]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – sentence – error regarding totality conceded – missed reference to 5 month period sentenced in interstate custody – re-sentence – recalcitrant domestic violence offender – retribution, deterrence and protection of society – no lesser sentence warranted

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Cahyadi v R [2007] NSWCCA 1
Callaghan v R (2006) 160 A Crim R 145; [2006]
NSWCCA 58
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Abboud [2005] NSWCCA 251
R v King [2003] NSWCCA 352
R v M.A.K; R v M.S.K (2006) 167 A Crim R 159; [2006] NSWCCA 381
Turnbull v R [2019] NSWCCA 97
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Matthew Mark Many (Applicant)
Regina (Respondent)
Representation:
Counsel:
R Khalilizadeh (Applicant)
C Curtis (Respondent)
Solicitors:
Heffernan Legal (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2018/30957
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 July 2020

Before:

McLennan SC DCJ

File Number(s):

2018/30957

Judgment

SIMPSON AJA: The relevant facts and circumstances are adequately set out in the judgments of Adamson J and Lonergan J, each of which I have had the advantage of reading in draft. By Ground 2 of the proposed appeal the applicant complains of the sentencing judge’s treatment, as a matter of aggravation, of his conduct in absconding to Queensland following his being charged in relation to the present offences, and the revocation of his parole. Certainly, those circumstances were not material to the assessment of the objective gravity of the offences for which the applicant stood for sentence, but nor did the sentencing judge treat them as such. It is undeniable that those circumstances speak forcefully to relevant sentencing considerations, specific deterrence, prospects of rehabilitation and the likelihood of reoffending. Like Adamson J and Lonergan J, I would reject Ground 2 of the proposed appeal.
The sentencing judge made a factual error in stating the dates during which the applicant had been incarcerated in Queensland, giving rise to Ground 1 of the proposed appeal. The result of the error was that his Honour overlooked a period of five months, between March and August 2018, in which the applicant had been in custody. The offending to which that period was referable was obstruction of Queensland police, wholly unrelated to the domestic violence offending for which the applicant was…

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 Many v The Queen

Details

AGLC: Many v The Queen [2021] NSWCCA 302
Case: [2021] NSWCCA 302
Decision Date: 14 December 2021

CaseChat Overview and Summary

In the case of Many v The Queen, the defendant was convicted of domestic violence offences and sentenced by the court. The appeal against sentence was heard by the High Court of Australia. The primary issue before the court was whether the original sentencing decision contained an error regarding the totality principle, which mandates that the overall sentence should not be disproportionate to the seriousness of the offending. The court identified an oversight in the original sentencing, where a five-month period of time served in interstate custody was not taken into account. This oversight led to an overestimation of the appropriate sentence.

The court addressed the legal principles relevant to sentencing, particularly focusing on the totality principle, and the objectives of retribution, deterrence, and protection of society. The defendant, who had a history of recalcitrant domestic violence, was considered a significant risk to the community. Despite the identified error, the court concluded that the original sentence was not excessive and that no lesser sentence was warranted given the defendant's history and the need to protect the community. The court ultimately upheld the original sentence, with the understanding that the oversight would be rectified in any future sentencing considerations.

The court found that while the error in the sentencing calculation was significant, it did not alter the overall appropriateness of the sentence. The defendant's history of domestic violence and the need to protect the community were paramount in the court's decision. The High Court of Australia dismissed the appeal against sentence, affirming that the original sentence was justified under the totality principle and the sentencing objectives. The court made clear that any future sentencing should accurately reflect all periods of time served to ensure compliance with the totality principle.

Orders