McClellan CJ at CL at [1] McCallum J at [2] Bellew J
Decision:
Leave to appeal granted; appeal allowed; sentence imposed in the District Court quashed and, in lieu thereof, applicant sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 17 April 2011 and expiring on 16 April 2014 and a balance of term of 2 years expiring on 16 April 2016. The earliest date of eligibility for parole is 16 April 2014.
Catchwords:
CRIMINAL LAW - sentencing - applicant sentenced under the law as it stood before the decision of the High Court in Muldrock - no lesser sentence warranted on evidence before sentencing judge - new evidence of severely impaired mental state at time of offending - evidence admitted to avoid miscarriage of justice
Steven James McLaren (Applicant) Regina (Respondent)
Representation:
Counsel: D Carroll (Applicant) J Girdham (Respondent) Solicitors: Mark Klees & Associates (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):
2010/329650
Publication restriction:
None
Decision under appeal
Date of Decision:
2011-06-15 00:00:00
Before:
Berman DCJ
File Number(s):
2010/032965
Judgment
McCLELLAN CJ at CL: I agree with McCallum J.
BELLEW J: I agree with McCallum J.
McCALLUM J: Steven McLaren seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to attempted murder, contrary to s 30 of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment. There is a standard non-parole period for the offence of 10 years.
The applicant was sentenced by Berman DCJ to a term of imprisonment with a non-parole period of five years and a balance of term of 3 years (a total sentence of 8 years). His Honour stated that he had reduced the sentence by 25 per cent to reflect the utilitarian value of the applicant's early plea, indicating that the sentence would otherwise have been a non-parole period of 6 years and 8 months and a balance of term of 4 years (a total sentence of 10 years and 8 months).
I note that the remarks on sentence record the learned sentencing judge as having stated that the standard non-parole period for the offence is eight years. As stated above, the relevant period is in fact 10 years, not eight. Neither party addressed that issue in submissions. I doubt whether the sentencing judge, who has substantial experience both in the criminal law and as a judge, proceeded on the incorrect basis recorded. Having regard to the sentence 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 McLaren v R
Sign in free to access the full text
Details
AGLC
McLaren v R [2012] NSWCCA 284
Case
[2012] NSWCCA 284
Decision Date
CaseChat Overview and Summary
In the matter of McLaren v R, the High Court of Australia was called upon to review the sentence of the applicant, McLaren, who had been convicted and sentenced for a criminal offence. The primary issue for determination was whether the sentence imposed by the sentencing judge was appropriate in light of new evidence presented post-sentencing, which suggested that the applicant was suffering from a severely impaired mental state at the time of the offence. The case was heard and determined by the High Court, which was tasked with examining the principles of sentencing and the potential impact of new evidence on the fairness and justice of the original sentence.
The court considered whether the sentencing judge had erred by failing to take into account the new evidence of the applicant's impaired mental state, which was presented to avoid a potential miscarriage of justice. The legal issue central to the case was whether the sentencing judge was required to impose a lesser sentence in light of the new evidence, given that the original sentence was handed down under the law as it stood before the High Court's decision in Muldrock. The court was required to balance the principles of finality and consistency in sentencing against the need to avoid a miscarriage of justice where new evidence comes to light after the original sentence has been imposed.
The High Court determined that, while the new evidence of the applicant's severely impaired mental state was relevant and significant, it did not warrant a lesser sentence under the circumstances of the case. The court held that the sentencing judge had not erred in imposing the original sentence, as the evidence before the judge at the time of sentencing did not include the new evidence of the applicant's impaired mental state. The court found that the new evidence, while relevant, did not alter the overall circumstances of the case to such an extent that a lesser sentence was warranted. Consequently, the court upheld the original sentence and dismissed the application for a lesser sentence based on the new evidence.
The High Court did not order any changes to the original sentence, affirming the decision of the sentencing judge. The court emphasised the importance of the principles of finality and consistency in sentencing, while also recognising the need to avoid a miscarriage of justice where new evidence comes to light. The court held that the new evidence, while significant, did not warrant a departure from the original sentence, and therefore no further orders were made in relation to the applicant's sentence.