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McLaughlin v R

McLaughlin v R

Case [2013] NSWCCA 152 3 July 2013

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McLaughlin v R [2013] NSWCCA 152
Hearing dates: 24 April 2013
Decision date: 03 July 2013
Before: Latham J at [1]
Button J at [2]
Barr AJ at [58]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence -sentencing judge erred by finding offence aggravated by commission in presence of child - no lesser sentence warranted at law - sentence not manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353
R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180
R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Seymour [2012] NSWSC 1010
Category: Principal judgment
Parties: Francis Downie McLaughlin (applicant)
Crown (respondent)
Representation: Counsel:
H Cox (applicant)
N Adams SC, J Davidson (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions

File Number(s): 10/329464
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-04-05 00:00:00

Before:

Syme DCJ

File Number(s):

2010/329464

Judgment

LATHAM J: I agree with Button J.

BUTTON J: On 5 April 2012 in the District Court of New South Wales at Penrith, her Honour Judge Syme sentenced Francis Downie McLaughlin ("the applicant") for three offences. They were: an assault occasioning actual bodily harm committed on 2 March 2010; a further assault occasioning actual bodily harm committed on 18 August 2010; and a common assault committed on 26 September 2010. The maximum penalty for the first two offences was imprisonment for 5 years and the maximum penalty for the common assault was imprisonment for 2 years. None of the offences attracted a standard non-parole period. All of the offences could have been dealt with in the Local Court.

Her Honour imposed the following sentences of imprisonment. With regard to count 1, the first assault occasioning actual bodily harm, a fixed term of imprisonment for 15 months was imposed, to date from 5 April 2012. With regard to count 2, the second assault occasioning actual bodily harm, a head sentence of imprisonment for 2 years with a non-parole period of 12 months was imposed, to date from 5 August 2012. With regard to count 3, the common assault, a fixed term of imprisonment for 1 year was imposed, to date from 5 June 2012.

Accordingly, a total head sentence of imprisonment for 2 years 4 months with a total non-parole period of 1 year 4 months was imposed. A diagram annexed to this judgment sets out the sentence structure in a readily comprehensible form.

Special circumstances were found that permitted a variation of the ratio between the total non-parole period and the total head sentence; if that had not been the case, the total non-parole period would…

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 McLaughlin v R

Details

AGLC: McLaughlin v R [2013] NSWCCA 152
Case: [2013] NSWCCA 152
Decision Date: 03 July 2013

CaseChat Overview and Summary

The matter before the court was an application for special leave to appeal against the severity of the sentence imposed by the sentencing judge. The applicant, McLaughlin, had been convicted of certain criminal offences and was sentenced by a judge of the Supreme Court of the State. The applicant contended that the sentencing judge erred in finding that the offence was aggravated by the fact it was committed in the presence of a child. The applicant argued that this finding was not supported by the evidence and that, as a result, the sentence imposed was manifestly excessive.

The court was required to determine whether the sentencing judge's finding that the offence was aggravated by the presence of a child was erroneous and, if so, whether this error warranted a lesser sentence. The court also had to consider whether the sentence imposed was manifestly excessive, despite the error.

The court held that, while the sentencing judge may have erred in finding that the offence was aggravated by the presence of a child, this error did not warrant a lesser sentence. The court found that the sentence imposed was within the range of sentences that could be considered appropriate for the offence committed. The court also held that the sentence was not manifestly excessive, as it was proportionate to the seriousness of the offence and took into account all relevant factors. Accordingly, the court dismissed the application for special leave to appeal against the severity of the sentence.

The court's final orders were that the application for special leave to appeal against the severity of the sentence was dismissed, and the sentence imposed by the sentencing judge was upheld. The court did not order any further proceedings or make any other orders.

Orders