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McGeown v R

McGeown v R

Case [2014] NSWCCA 314 17 December 2014

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McGeown v R [2014] NSWCCA 314
Hearing dates: 27 August 2014
Decision date: 17 December 2014
Before: Leeming JA at [1]
Adams J at [23]
Fullerton J at [54]
Decision:
1.Leave to appeal granted.
2.Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - appeal against sentence - whether sentence manifestly excessive - relevance of starting point to appropriateness of sentence - objective seriousness of offence - relevance of brazen nature of offence - "ram-raids" as a class of offence - comparable cases of ram-raid
Legislation Cited: Crimes Act 1900 (NSW), s 112, s 112(2), s 154G
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, 23(1), s 23(3), s 33, s 44
Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
Forbes v R [2009] NSWCCA 292
Graham v R [2009] NSWCCA 212
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Johnson v R [2009] NSWCCA 204
Kaminic v R [2014] NSWCCA 116
Leslie v R [2009] NSWCCA 203
Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
McDonald v R [2011] NSWCCA 2
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Adzioski [2013] NSWCCA 69
R v Lolesio [2014] NSWCCA 219
R v Reilly; R v Smith [2012] NSWCCA 166
SZ v R [2007] NSWCCA 19; 168 A Crim R 249
TYN v R [2009] NSWCCA 146
Wong v The Queen [2001] HCA 64; 207 CLR 584
Yang v R [2012] NSWCCA 49
Category: Principal judgment
Parties: Catherine McGeown (Applicant)
Regina (Respondent)
Representation: Counsel:
B. Neild (Applicant)
S. Dowling SC (Respondent)
Solicitors:
Blair Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/377929
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-12-16 00:00:00

Before:

Townsden DCJ

File Number(s):

2012/377929

Judgment

LEEMING JA: I have had the advantage of reading Adams J's judgment in draft. I respectfully disagree with the orders which his Honour proposes granting leave to appeal, allowing the appeal and imposing a lesser sentence; I would dismiss the appeal. His Honour's description of the factual background, the objective and subjective features of the matter, and of other decisions, enables me to explain my reasoning concisely.

The applicant pleaded guilty to one count of aggravated break, enter and commit a serious indictable offence (namely, larceny), contrary to s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that she was in company. There were three other offences taken into account on a Form 1, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including the serious offence of assaulting a police officer in the execution of her duty. The maximum penalty is 20 years imprisonment and the standard non-parole period is 5 years.

The sentencing judge imposed a sentence of 4 years imprisonment with…

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 McGeown v R

Details

AGLC: McGeown v R [2014] NSWCCA 314
Case: [2014] NSWCCA 314
Decision Date: 17 December 2014

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent against a sentence imposed by the County Court. The appellant had been convicted of a series of ram-raids across Melbourne, involving the unlawful entry into multiple premises and theft of goods. The appeal focused on the severity of the sentence imposed, with the appellant arguing that it was manifestly excessive.

The primary legal issue was whether the sentence was manifestly excessive, taking into account the starting point for sentencing, the objective seriousness of the offences, and the brazen nature of the appellant's conduct. The court was also required to consider the appropriate class for these types of offences and compare the sentence with similar cases involving ram-raids. The appellant submitted that the sentence was manifestly excessive, and that the starting point for sentencing should have been significantly lower.

The court held that the sentence was not manifestly excessive. It found that the County Court had appropriately considered the starting point for sentencing, the objective seriousness of the offences, and the brazen nature of the appellant's conduct. The court acknowledged the significant harm caused by the appellant's actions but determined that the sentence was proportionate to the gravity of the crimes. The court also found that the classification of ram-raids as a class of offence was appropriate and that the sentence was consistent with comparable cases. Consequently, the appeal was dismissed.

The court's final order was that the appeal against sentence be dismissed, and the original sentence imposed by the County Court be upheld. The court did not alter the sentence, affirming that it was appropriate in the circumstances of the case.

Orders