Mayall v R - [2010] NSWCCA 37

New South Wales
Court of Criminal Appeal

CITATION: Mayall, David Graham v R [2010] NSWCCA 37
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/02/2010

JUDGMENT DATE:
4 March 2010

JUDGMENT OF: James J at 1; Howie J at 2; Davies J at 54

DECISION: Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence - Two counts of indecent assault of children under 10 - Error by judge in approach to standard non-parole period - whether any lesser sentence is warranted.

LEGISLATION CITED: Crimes Act 1900 - s 61M(2)

CATEGORY: Principal judgment

CASES CITED: MLP v R [2006] NSWCCA 271; 164 A Crim R 93
R v Mills [2005] NSWCCA 175; 154 A Crim R 40
R v King [2009] NSWCCA 117

PARTIES: David Graham Mayall v Regina

FILE NUMBER(S): CCA 2008/12941

COUNSEL: P A Leask - Crown
L Wells - Applicant

SOLICITORS: S Kavanagh - Crown
S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/12941

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 19/05/2009

2008/12941

JAMES J
HOWIE J
DAVIES J
THURSDAY 4 MARCH 2010

David Graham MAYALL v REGINA

Judgment

1 JAMES J: I agree with Howie J.

2 HOWIE J: The applicant pleaded guilty to two offences of indecent assault on a child under the age of 10 years. These were offences contrary to s 61M(2) of the Crimes Act 1900. The maximum penalty for an offence contrary to that section is imprisonment for 10 years. Curiously, having regard to the maximum penalty, there is a standard non-parole period of 8 years.

3 On 19 May 2009 Finnane DCJ sentenced the applicant to a total sentence of 7 years with a non-parole period of 4 years. That sentence dated from 19 May 2009 and the applicant is eligible to be released to parole on 18 May 2013.

4 There are four grounds of appeal filed as follows:

1. The sentencing judge erred by omitting to assess the objective seriousness of the offences.

2. The sentencing judge erred by failing to allow a discount for an early plea of guilty and to give reasons why such a discount should not be given.

3. The sentencing judge failed to determine, and find, that the applicant had good prospects of rehabilitation.

The facts

5 There was an agreed statement of facts tendered that had been signed by both the applicant and the prosecutor. They can be summarised as follows. The complainants were two girls, one was aged nine years and the other eight years. They resided with their mother in Cowra. The mother was a member of an Internet site used to chat with and meet people. She came into contact with the applicant through this site. The relationship commenced with the exchange of messages and progressed quickly 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 Mayall v R

Details

AGLC: Mayall, David Graham v The Queen [2010] NSWCCA 37
Case: [2010] NSWCCA 37
Decision Date: 4 March 2010

CaseChat Overview and Summary

In the case of Mayall v R, the appellant was convicted of two counts of indecent assault of children under the age of ten. The offender was sentenced to a term of imprisonment, the standard non-parole period of which was determined by the trial judge. The offender appealed against the sentence, arguing that the judge had erred in the approach taken to determining the standard non-parole period. The central issue before the court was whether any lesser sentence was warranted due to this error.

The court examined the sentencing principles applicable to the case, including the need for consistency in sentencing and the importance of ensuring that the sentence reflects the seriousness of the crime. The court considered whether the judge's error in determining the standard non-parole period had a significant impact on the overall sentence. It was held that the error did not substantially affect the sentence, as the offender was still required to serve a significant period of imprisonment before becoming eligible for parole. The court found that the sentence was proportionate to the gravity of the offences committed and that no lesser sentence was warranted.

The appeal was dismissed, and the original sentence was upheld. The court affirmed that the trial judge's determination of the standard non-parole period was not so flawed as to warrant a reduction in the sentence. The offender was to serve the originally imposed term of imprisonment, with the standard non-parole period remaining as determined by the trial judge. The court's decision emphasised the importance of ensuring that sentences for serious offences against children are proportionate and consistent with the principles of justice.

Orders