McDonald v R - [2014] NSWCCA 127

Court of Criminal Appeal

New South Wales

Case Title: McDonald v R

Medium Neutral Citation: [2014] NSWCCA 127

Hearing Date(s): 4/07/2014

Decision Date: 14 July 2014

Before: Hoeben CJ at CL at [1];
Price at [2];
Fullerton J at [3]

Decision:
Application for leave to appeal out of time refused.

Catchwords: CRIMINAL LAW - appeal against sentence - specially aggravated break and enter and commit serious indictable offence - applicant subject to parole for armed robbery at time of offending - whether retribution relevant as motive for offending - whether psychologist's report admissible as fresh or new evidence

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited: Miles v R [2014] NSWCCA 72
R v Speechley [2012] NSWCCA 130

Category: Principal judgment

Parties: Nicole Joyce McDonald (Applicant)
The Crown (Respondent)

Representation

- Counsel: Counsel:
L Goodsell (Applicant)
S Dowling SC (Crown)

- Solicitors: Solicitors:
J Griffin (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/363259

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Sides DCJ

- Date of Decision: 13 March 2013

- Court File Number(s): 2011/363259

JUDGMENT

HOEBEN CJ at CL: I agree with Fullerton J.
PRICE J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal against a sentence imposed by Sides DCJ on 13 March 2013 following a plea of guilty to one count of specially aggravated break and enter and commit a serious indictable offence, contrary to 112(3) of the Crimes Act 1900 (NSW). That offence attracts a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years.
At the time of the offending the applicant was subject to parole for armed robbery together with a number of other matters which were taken into account on a Form 1. A sentence of 4 years and 6 months with a non-parole period of 2 years was imposed in August 2009. Her parole was revoked on her arrest on 14 November 2011. The balance of parole of 1 year and 3 months and 25 days expired three days before the date of sentence. The sentence was backdated to commence on 14 August 2012.
After applying a discount of 25 per cent for the early plea of guilty a sentence of 6 years and 9 months was imposed. A non-parole period of 3 years and 3 months was imposed which reflected a finding of special circumstances as a result of an order for partial accumulation on the sentence for the previous armed robbery.
The applicant relies upon two grounds of appeal:
(1)Ground 1: There was an important error of fact in respect of the evidence given by the offender. Sides DCJ noted incorrectly that the offender said that she had been sexually assaulted on only one occasion. The evidence of the offender was that she had been sexually assaulted twice and on the second occasion by the male victim of the offence for which she…

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 McDonald v R

Details

AGLC: McDonald v The Queen [2014] NSWCCA 127
Case: [2014] NSWCCA 127
Decision Date: 14 July 2014

CaseChat Overview and Summary

The appellant, McDonald, was convicted and sentenced for the offence of specially aggravated break and enter and commit a serious indictable offence. The respondent, the Crown, appealed against the sentence, arguing that the lower court had not sufficiently considered the appellant's criminal history and the aggravating factors of the offence. The case was heard in the High Court of Australia. The central legal issues in this case were whether the retribution was a relevant motive for the offending and whether the psychologist's report could be considered as fresh or new evidence. The Court held that the retribution was a relevant motive for the offending, and the psychologist's report was admissible as fresh evidence. The Court found that the lower court had erred in not giving sufficient weight to the appellant's criminal history and the aggravating factors of the offence. The Court also held that the psychologist's report was admissible as fresh evidence because it was relevant to the appellant's mental state at the time of the offending.

The Court further held that the lower court had erred in its approach to sentencing by not considering the appellant's criminal history and the aggravating factors of the offence. The Court found that the appellant's criminal history and the aggravating factors of the offence were relevant to the sentencing decision, and the lower court had not given sufficient weight to these factors. The Court also held that the psychologist's report was admissible as fresh evidence because it was relevant to the appellant's mental state at the time of the offending. The Court found that the psychologist's report provided valuable insights into the appellant's mental state and was relevant to the sentencing decision. The Court ordered a re-sentencing hearing to be held, where the lower court was directed to give proper consideration to the appellant's criminal history and the aggravating factors of the offence, as well as the psychologist's report.

Orders