MB v R

Case [2013] NSWCCA 254 8 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MB v R [2013] NSWCCA 254
Hearing dates: 16 October 2013
Decision date: 08 November 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [32]
Bellew J at [33]
Decision:
(1) Grant an extension of time within which to bring an application for leave to appeal against sentence.
(2) Grant leave to appeal against sentence.
(3) Quash the sentence imposed by Howie J on 10 November 2006.
(4) In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 12 years and 6 months commencing 8 July 2005 and expiring on 7 January 2018 with a balance of term of 5 years expiring on 7 January 2023. The date upon which the applicant is eligible to be released to parole is 7 January 2018.

Catchwords: CRIMINAL LAW - sentence appeal - murder contrary to s18 Crimes Act 1900 - application for extension of time for leave to appeal against sentence - delay of over 6 years - principle of finality - applicant aged 16 at time of offence - application of s6(3) of Criminal Appeal Act 1912 - substantial injustice likely to occur if extension of time not granted - insufficient weight given to age of applicant - less severe sentence warranted in law - applicant re-sentenced.
Legislation Cited: Crimes Act 1900 - s18
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) - s54D(3)
Criminal Appeal Act 1912 (NSW) - s6(3)
Cases Cited: Abdul v R [2013] NSWCCA 247
AI v R [2011] NSWCCA 95
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
BP v R [2010] NSWCCA 159; 201 A Crim R 379
Douar v R [2005] NSWCCA 455;159 A Crim R 154
KT v R [2008] NSWCCA 51; 182 A Crim R 571
MB v R [2009] NSWCCA 200
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v MB [2006] NSWSC 1164
R v Way [2004] NSWCCA 131; 60 NSWLR 168
TM v R [2008] NSWCCA 158
Category: Principal judgment
Parties: MB - Applicant
Regina - Respondent Crown
Representation: Counsel:
Ms R Burgess - Applicant
Ms M Cinque - Respondent Crown
Solicitors:
S O'Connor - Legal Aid NSW - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2005/3317
Decision under appeal

Citation:

R v MB [2006] NSWSC 1164

Date of Decision:

2006-11-10 00:00:00

Before:

Howie J

File Number(s):

2005/3317

Judgment

HOEBEN CJ at CL:

Offence and sentence

In 2006 the applicant was convicted after a trial by jury of one count of murder, contrary to s18 of the Crimes Act 1900. The maximum penalty for murder is life imprisonment. The offence attracts a standard non-parole period of 20 years.

On 10 November 2006 the applicant was sentenced by Howie J to imprisonment with a non-parole period of 15 years and 6 months and a balance of term of…

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 MB v R

Details

AGLC: MB v R [2013] NSWCCA 254
Case: [2013] NSWCCA 254
Decision Date: 08 November 2013

CaseChat Overview and Summary

The appellant, MB, sought an extension of time to appeal against his sentence for murder under section 18 of the Crimes Act 1900. The application was made more than six years after the conviction, raising significant issues of delay and the principle of finality. The court was tasked with determining whether the delay was justified and whether an extension of time should be granted under section 6(3) of the Criminal Appeal Act 1912, which requires the court to consider whether a substantial injustice would likely occur if the extension was not granted.

The court examined the reasons for the delay, including the appellant's age at the time of the offence, which was 16 years. The court also considered whether the sentence was appropriate given the age of the appellant and whether the circumstances warranted a less severe sentence. The court noted that insufficient weight had been given to the appellant's age in the original sentencing, which may have impacted the severity of the sentence imposed. The court concluded that a substantial injustice would likely occur if the extension of time was not granted and that a less severe sentence was warranted in law.

The court granted the application for an extension of time and re-sentenced the appellant, taking into account his age at the time of the offence and the principle of finality. The court emphasised the importance of considering the age of the offender when imposing a sentence and the need to avoid a substantial injustice. The court's decision highlights the importance of considering the individual circumstances of the offender, including their age, when imposing a sentence and the need to avoid a substantial injustice if the sentence is later found to be inappropriate.

Orders