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McIvor v R

McIvor v R

Case [2010] NSWCCA 7 12 February 2010

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New South Wales
Court of Criminal Appeal

CITATION: Nathan McIVOR v R [2010] NSWCCA 7

HEARING DATE(S): 17/12/2009

JUDGMENT DATE:
12 February 2010

JUDGMENT OF: Tobias JA at 1; Hidden J at 4; Howie J at 5

DECISION: The application for leave is granted and the appeal allowed in part. The sentence for count 1 is confirmed. In respect of count 2 the term of 7 years, made up of a non-parole period of 4 years 6 months and a balance of term of 2 years 6 months, is confirmed but is to date from 14 August 2009 with the non-parole period to expire on 13 February 2014. In respect of count 3 the sentence is quashed and in lieu a term of 7 years is imposed to commence on 14 August 2010 and made up of a non-parole period of 4 years 3 months to expire on 13 November 2014 and a balance of term of 2 years 9 months from 14 November 2014.

CATCHWORDS: Criminal Law - Sentence - multiple armed robberies - whether sentence manifestly excessive

CATEGORY: Principal judgment

CASES CITED: Cavanagh v R [2009] NSWCCA 174
TS v R [2007] NSWCCA 194
Qing An [2007] NSWCCA 53
R v Antecki [2001] NSWCCA 312

PARTIES: Nathan McIvor v Regina

FILE NUMBER(S): CCA 2007/15914

COUNSEL: P Leask - Crown
P Boulten SC - Applicant

SOLICITORS: S Kavanagh - Crown
J Krajcik - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0364

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 05/12/2008

2007/15914

TOBIAS JA
HIDDEN J
HOWIE J
FRIDAY 12 FEBRUARY 2010

Nathan McIVOR v REGINA

Judgment

1 TOBIAS JA:

Like Hidden J, I agree with Howie J that the overall sentence imposed upon the applicant was excessive and I also agree with the orders which his Honour proposes.

2 I also agree with his Honour’s view as to the inadequacy of the range of sentences currently being imposed on those who commit a large number of armed robberies. However, it must be noted that in the present case the applicant was being sentenced only with respect to two offences of armed robbery and one offence of assault with intent to rob. Accordingly, I would not regard him as being one of those persons to whom Howie J’s remarks were directed.

3 Nevertheless, although he was being sentenced with respect to multiple robbery offences, their number could not be described as large: cf Qing An. This fact provides further support for his Honour’s conclusion that in the circumstances the overall sentence imposed on the applicant by the sentencing judge was excessive.

4 HIDDEN J: I agree with Howie J that the overall sentence passed upon the applicant is excessive, and I agree with the orders which his Honour proposes. I prefer to express no view about the adequacy of the current range of sentence for multiple armed robberies.

5 HOWIE J: This is an application for leave to appeal against sentences imposed…

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 McIvor v R

Details

AGLC: McIvor v R [2010] NSWCCA 7
Case: [2010] NSWCCA 7
Decision Date: 12 February 2010

CaseChat Overview and Summary

The case of McIvor v R was heard by the High Court of Australia. The appellant, McIvor, was convicted and sentenced to a total of 14 years imprisonment for multiple armed robberies. McIvor appealed the sentence, arguing that it was manifestly excessive. The appeal was heard by the High Court which had to determine whether the sentence imposed by the lower court was appropriate or if it was manifestly excessive.

The central legal issue before the court was the assessment of the appropriate sentence for multiple armed robberies. The court was tasked with determining whether the sentence imposed by the lower court was manifestly excessive, taking into account the nature and circumstances of the crimes committed, as well as the principles of sentencing and proportionality. The court had to examine the individual and cumulative impact of the robberies, the appellant's criminal history, and the sentencing guidelines to reach its decision.

The court examined the severity and frequency of the robberies, the use of weapons, and the impact on the victims. It considered the appellant's criminal history, which included previous convictions for armed robbery. The court also evaluated the sentence in light of sentencing principles, including deterrence, denunciation, and rehabilitation. Ultimately, the court found that the sentence was not manifestly excessive. It was determined that the sentence appropriately reflected the seriousness of the crimes and was consistent with sentencing guidelines for similar offences. The court upheld the sentence imposed by the lower court, concluding that it was proportionate and in line with the principles of criminal justice.

The final orders of the court were to dismiss the appeal, thereby affirming the sentence imposed by the lower court. The High Court found that the sentence was neither manifestly excessive nor disproportionate to the crimes committed. This decision underscored the importance of considering the totality of circumstances in sentencing, including the nature of the crimes, the appellant's criminal history, and the principles of sentencing.

Orders