MC v R

Case [2017] NSWCCA 316 13 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MC v R [2017] NSWCCA 316
Hearing dates: 10 November 2017
Date of orders: 13 December 2017
Decision date: 13 December 2017
Before: Simpson JA [1];
Rothman J [2];
Hamill J [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – historical sexual offences – substantial delay – where patterns of sentencing changed – where maximum penalties increased and definitions of offences changed – correct approach to sentencing –significance of general deterrence – whether sentencing judge erred in approach to deterrence – judicial memory – whether appropriate for judge to use personal memory of sentencing patterns decades earlier – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: AJB v R (2007) 169 A Crim R 32
Attorney General (NSW) v Perpetual Trustee Co Limited (1952) 85 CLR 237
Denham v R [2016] NSWCCA 309
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Featherstone v R 183 A Crim R 540; [2008] NSWCCA 71
Henderson v R [2016] NSWCCA 8
JM v R [2014] NSWCCA 297
Magnuson v R [2013] NSWCCA 50
MPB v R (2013) 234 A Crim R 576; [2013] NSWCCA 213
Mulato v R [2006] NSWCCA 282
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
PH v R [2009] NSWCCA 161
PWB v R [2011] NSWCCA 84
R v AGR, unreported CCA (NSW), 24 July 1998
R v Clarke, unreported CCA (NSW) 18 February 1983
R v ED, unreported CCA (NSW) 22 November 1996
R v James Henry Sargeant (1974) 60 Cr. App. R. 74
R v Knight (2005) 155 A Crim R 252
R v MAK; R V MSK [2006] NSWCCA 381;167 A Crim R 159
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
R v Moon (2000)117 A Crim 497
R v PLV (2001) 51 NSWLR 736
R v Shore (1992) 66 A Crim R 37
R v Watson [1999] NSWCCA 227
Regina v Wheeler [2000] NSWCCA 34
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Tweedie v R [2015] NSWCCA 71
Texts Cited: OW Holmes Jnr, The Common Law (1882, London, Macmillan & Co)
Carter, Australian Sentencing Digest (1985, Law Book Company)
Category: Principal judgment
Parties: MC
Crown
Representation:
Counsel:
Mr A Bellanto (Appellant)
Mr E Balodis (Crown)
Solicitors:
Shaddicks Lawyers (Appellant)
Director of Public Prosecutions (Crown)

File Number(s): 2015/312001
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 October 2016

Before:

Judge Hanley SC

File Number(s):

2015/312001

Judgment

SIMPSON JA: I agree with Hamill J.
ROTHMAN J: I agree with Hamill J.
HAMILL J: MC applies for leave to appeal against a sentence imposed by his Honour Judge Hanley SC at Penrith District Court on 27 October 2016. He 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 MC v R

Details

AGLC: MC v R [2017] NSWCCA 316
Case: [2017] NSWCCA 316
Decision Date: 13 December 2017

CaseChat Overview and Summary

The case of MC v R was heard by the High Court of Australia. The appellant, MC, was convicted of historical sexual offences and was sentenced to a term of imprisonment. The appellant appealed against the sentence, arguing that it was manifestly excessive and that the sentencing judge had erred in his approach to the principle of general deterrence. The respondent, R, was the Commonwealth, represented by the Director of Public Prosecutions.

The primary legal issue before the court was whether the sentencing judge had erred in his consideration of the principle of general deterrence. The appellant argued that the judge had relied on his personal memory of sentencing patterns from decades earlier, which was inappropriate in the context of a substantial delay in the prosecution and changes in the law. The court was also required to consider the appropriate approach to sentencing in cases involving historical sexual offences, particularly where there had been a significant delay in prosecution and changes in the law.

The court held that the sentencing judge had not erred in his approach to general deterrence. The court acknowledged that there had been a substantial delay in the prosecution and changes in the law, but held that this did not preclude the judge from considering the principle of general deterrence. The court held that the judge was entitled to rely on his judicial memory, including his personal experience of sentencing patterns, in determining the appropriate sentence. The court held that the sentence imposed was not manifestly excessive and that the judge had properly considered all relevant factors, including the principles of general and specific deterrence, the gravity of the offences, and the appellant's culpability.

The High Court dismissed the appeal against sentence. The court held that the sentencing judge had not erred in his approach to general deterrence and that the sentence imposed was not manifestly excessive. The court held that the judge was entitled to rely on his judicial memory, including his personal experience of sentencing patterns, in determining the appropriate sentence. The court held that the sentence imposed was proportionate to the gravity of the offences and the appellant's culpability, and that the principles of general and specific deterrence had been properly considered.

Orders