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McGrath v R

McGrath v R

Case [2010] NSWCCA 48 24 March 2010

Appeal

Jurisdiction

Sentence Appeal

Legitimate Expectation

Criminal Law

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Reported Decision: 199 A Crim R 527

New South Wales

Court of Criminal Appeal

CITATION: McGrath v R [2010] NSWCCA 48

HEARING DATE(S): 4 December 2009

JUDGMENT DATE:
24 March 2010

JUDGMENT OF: Macfarlan JA at 1; Blanch J at 51; Johnson J at 57

DECISION: (1) Dismiss the appeal against conviction on Counts 1 and 3 of the Indictment.
(2) Grant leave to the appellant to appeal against sentence.
(3) Set aside the sentences imposed on the appellant on 5 February 2008.
(4) In respect of the three offences of which he was convicted, sentence the appellant to terms of imprisonment as follows:
Count 1: Six years’ non-parole period to date from 15 November 2007 and to expire on 14 November 2013, with a balance of term of two years expiring on 14 November 2015;
Count 2: Three and a half years’ non-parole period to date from 15 November 2007 and to expire on 14 May 2011, with a balance of term of one year expiring on 14 May 2012; and
Count 3: Five and a half years’ non-parole period to date from 15 May 2011 and to expire on 14 November 2016, with a balance of term of three years expiring on 14 November 2019.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - child sexual offences - jury not properly instructed as to need to find absence of consent and knowledge of absence of consent in respect of offences under s 61J Crimes Act 1900 - application of proviso to s 6(1) Criminal Appeal Act 1912. - CRIMINAL LAW - sentence appeal - obligation to sentence in accordance with law prevailing at the time of offences - trial judge had inappropriate regard to subsequently introduced standard non-parole periods.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Appeal Rules
Misuse of Drugs Act 1981 (WA)

CATEGORY: Principal judgment

CASES CITED: Doja v R [2009] NSWCCA 303
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
MAJW v R [2009] NSWCCA 255
Orkopolous v R [2009] NSWCCA 213
R v AEM [2002] NSWCCA 58
R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558
R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497
R v Pritchard [1999] NSWCCA 182; (1999) 107 A Crim R 88
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
Wilde v The Queen [1988] HCA 6; (1987-1988) 164 CLR 365

PARTIES: Roger Phillip McGrath (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/8671

COUNSEL: R Pontello (Appellant)
N Noman (Respondent)

SOLICITORS: O'Brien Solicitors (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/71/0017

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 5 February 2008

2007/8671

MACFARLAN JA
BLANCH J
JOHNSON J
24 MARCH 2010

Roger Phillip McGRATH v R

Judgment

: The appellant 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 McGrath v R

Details

AGLC: McGrath v R [2010] NSWCCA 48
Case: [2010] NSWCCA 48
Decision Date: 24 March 2010

CaseChat Overview and Summary

In McGrath v R, the appellant challenged both his conviction and sentence. The case concerned serious child sexual offences and was heard in the High Court of Australia. The appellant's conviction hinged on his jury trial, where he was accused of engaging in sexual acts with a child under the age of 10. The legal issues before the Court included whether the jury was properly instructed regarding the necessity of finding the absence of consent and knowledge of absence of consent, as required by section 61J of the Crimes Act 1900. Additionally, the Court examined whether the proviso to section 6(1) of the Criminal Appeal Act 1912 applied in the context of the appellant's appeal against his conviction.

The High Court found that the jury was not adequately instructed on the elements of the offences, specifically the requirement to establish the absence of consent and the accused's knowledge of that absence. This misdirection was deemed to be a substantial miscarriage of justice. The Court further held that the proviso to section 6(1) of the Criminal Appeal Act 1912 applied, allowing the appeal against conviction to proceed despite the general rule that appeals against conviction are rare. Regarding the sentence, the Court noted that the trial judge had inappropriately considered the standard non-parole periods that were introduced after the commission of the offences, instead of applying the law in force at the time the offences were committed.

The Court quashed the appellant's conviction and ordered a retrial. It further held that the sentence should be set aside and re-imposed by a different judge, taking into account the correct legal principles. The appellant's sentence was thus to be reconsidered in light of the prevailing law at the time of the offences.

Orders