McGuiness v The Queen

Case [2021] NSWCCA 80


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: McGuiness v R [2021] NSWCCA 80
Hearing dates: 25 November 2020
Date of orders: 23 April 2021
Decision date: 23 April 2021
Before: Hoeben CJ at CL at [1];
Bellew J at [2];
Wright J at [3]
Decision:

(1)   The applicant is granted leave to appeal.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – Appeal – Appeal against sentence – Whether sentencing judge erred by taking into account the fact that the applicant was on conditional liberty in assessing the objective seriousness – Where a fair reading of the sentencing judge’s remarks did not support the conclusion that the applicant’s conditional liberty was taken into account in determining the objective seriousness – Whether sentencing judge failed properly to consider Bugmy principles or the evidence giving rise to the application of those principles – Evidence adequately considered and principles taken into account – Whether sentence manifestly excessive – Comparative cases considered – Leave to appeal granted – Appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Buxton v R [2017] NSWCCA 169

Currie v R [2013] NSWCCA 267

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Dixon v R [2019] NSWCCA 85

Dungay v R [2020] NSWCCA 209

Elhassan v R [2018] NSWCCA 118

England v R; Phanith v R [2009] NSWCCA 274

Field v R [2020] NSWCCA 105

Hamed v R [2011] NSWCCA 219

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Ingrey v R [2016] NSWCCA 31

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Miller v R [2015] NSWCCA 86

Moodie v R [2020] NSWCCA 160

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nean v R [2019] NSWCCA 164

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Perkins v R [2018] NSWCCA 62

PO v R [2020] NSWCCA 129

Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

R v Huynh [2003] NSWCCA 239

R v Irwin [2019] NSWCCA 133

R v Lomas [2004] NSWCCA 46

Singh v R [2020] NSWCCA 353

Vandeventer v R [2013] NSWCCA 33

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Wright v R [2019] NSWCCA 134

Yeung v R [2018] NSWCCA 52

Yousif v R [2014] NSWCCA 180

Category:Principal judgment
Parties: Frank McGuiness (Applicant)
Regina (Crown)
Representation:

Counsel:
B Neild (Applicant)
C Young (Crown)

Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2018/228669
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Citation:

[2020] NSWDC 90

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AGLC
McGuiness v The Queen [2021] NSWCCA 80
Case
[2021] NSWCCA 80
Decision Date

CaseChat Overview and Summary

McGuiness v The Queen involved an appeal against a sentence imposed on the applicant. The applicant was convicted of various offences and was appealing the severity of the sentence. The High Court of Australia was tasked with determining whether the sentencing judge had erred in several respects, including by taking into account the fact that the applicant was on conditional liberty when assessing the objective seriousness of the offences, and whether the sentencing judge had failed to properly consider the principles articulated in Bugmy or the evidence relevant to those principles.

The court first considered whether the sentencing judge had erred by taking into account the applicant's conditional liberty. The court found that a fair reading of the sentencing judge's remarks did not support the conclusion that the applicant's conditional liberty was considered when determining the objective seriousness of the offences. The court then examined whether the sentencing judge had failed to properly consider the Bugmy principles or the evidence giving rise to the application of those principles. The court held that the evidence had been adequately considered and the principles had been taken into account.

The court further examined whether the sentence was manifestly excessive. The court considered comparative cases and found that the sentence was not manifestly excessive. Ultimately, the court granted leave to appeal but dismissed the appeal, finding that the sentence was not manifestly excessive and that the sentencing judge had properly considered the relevant principles and evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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