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McClelland v R

McClelland v R

Case [2019] NSWCCA 59 29 March 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McClelland v R [2019] NSWCCA 59
Hearing dates: 13 March 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Before: Macfarlan JA at [1];
Fullerton J at [2];
Bellew J at [51]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords: CRIME – Appeals – Appeal against sentence – whether the sentencing judge erred by making findings as to objective seriousness which contravened concessions by the Crown – whether the Crown’s submissions in respect of objective seriousness are properly characterised as concessions – whether the sentencing judge erred in assessing objective seriousness – whether the sentencing judge imposed an aggregate sentence which was unreasonable or plainly unjust
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Battersby v R [2018] NSWCCA 141
Carroll v The Queen [2009] HCA 13
Chong v R [2017] NSWCCA 185
DL v The Queen [2018] HCA 32
DN v R [2016] NSWCCA 252; 92 NSWLR 600
Kerr v R [2016] NSWCCA 218
Newman v R [2018] NSWCCA 208
R v Cortese [2013] NSWCCA 148
R v Speechley [2012] NSWCCA 130
Salafia v R [2015] NSWCCA 141
Simpson v R [2014] NSWCCA 23
Stojanovski v R [2013] NSWCCA 334
Category: Principal judgment
Parties: Samuel Luke McClelland (Applicant)
The Crown (Respondent)
Representation:
Counsel:
C Smith SC (Applicant)
M England (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/57029
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

26 May 2017

Before:

Baly SC DCJ

File Number(s):

2014/57029

Judgment

MACFARLAN JA: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 12 years imprisonment with a non-parole period of 7 years imposed by Baly SC DCJ on 26 May 2017 after he was convicted after trial on 15 December 2016 of the following offences:

One count of sexual intercourse without consent laid contrary to s 61I of the Crimes Act 1900 (NSW) (Count 1 on the indictment);

Two counts of sexual intercourse without consent laid contrary to s 61J(1) of the Crimes Act (in each case aggravated by the reckless infliction of actual bodily harm in s 61J(1)(a)) (Counts 2 and 3 on the indictment);

Two counts of detain for advantage contrary to s 86(1) of the Crimes Act (in each count the advantage being an intention to obtain psychological satisfaction) (Counts 6 and 9 on the indictment).

The jury were unable to agree on two further counts of sexual intercourse without consent, also laid contrary to s 61I of the Crimes Act (Counts 7 and 8 on the indictment).
The following table summarises the maximum penalty applicable for each offence and, where appropriate, the applicable standard non-parole period. In respect of Counts 1, 2 and 3 the table also identifies the nature of the sexual intercourse the subject of each count and, in…

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 McClelland v R

Details

AGLC: McClelland v R [2019] NSWCCA 59
Case: [2019] NSWCCA 59
Decision Date: 29 March 2019

CaseChat Overview and Summary

The case of McClelland v R involved an appeal against the sentence imposed by the sentencing judge. The appellant, McClelland, challenged the sentence on the basis that the sentencing judge erred by making findings as to the objective seriousness of the crime, which allegedly contravened the concessions made by the Crown. Additionally, McClelland argued that the Crown's submissions concerning the objective seriousness were not properly characterised as concessions. The appellant further contended that the sentencing judge erred in assessing the objective seriousness of the crime and that the aggregate sentence imposed was unreasonable or plainly unjust.

The legal issues that arose in this case pertained to the proper characterisation of the Crown's submissions regarding objective seriousness, the sentencing judge's assessment of objective seriousness, and the reasonableness of the aggregate sentence imposed. The court needed to determine whether the sentencing judge's findings as to the objective seriousness of the crime contravened the concessions by the Crown and whether the Crown's submissions in respect of objective seriousness were properly characterised as concessions. Furthermore, the court had to consider whether the sentencing judge erred in assessing the objective seriousness of the crime and whether the aggregate sentence imposed was unreasonable or plainly unjust.

In addressing these issues, the court held that the Crown's submissions concerning objective seriousness were not properly characterised as concessions. Consequently, the sentencing judge was not bound by those submissions when making findings as to the objective seriousness of the crime. The court found that the sentencing judge did not err in assessing the objective seriousness of the crime, as the findings were supported by the evidence presented at the trial. Lastly, the court concluded that the aggregate sentence imposed was not unreasonable or plainly unjust, as it took into account all relevant factors and was proportionate to the gravity of the offence committed.

As a result of the court's reasoning, the appeal against sentence was dismissed. The court found that the sentencing judge did not err in making findings as to the objective seriousness of the crime and that the aggregate sentence imposed was reasonable and just. The court's decision reinforces the importance of correctly characterising submissions made by the Crown and the sentencing judge's discretion in assessing the objective seriousness of a crime when determining an appropriate sentence.

Orders