McMenemy v The Queen - [2009] NSWCCA 50

New South Wales
Court of Criminal Appeal

CITATION: McMenemy v R [2009] NSWCCA 50

HEARING DATE(S): 27 February 2009

JUDGMENT DATE:
27 February 2009

JUDGMENT OF: Grove J at 1; Buddin J at 36; Price J at 2

EX TEMPORE JUDGMENT DATE: 27 February 2009

DECISION: 1. Leave to appeal against sentence granted. 2. Appeal against sentence allowed in the following respect:
Quash the sentence imposed for the offence contrary to s 97(1) of the Crimes Act (the third charge). In lieu thereof, taking into account the Form 1 offences impose a sentence of a non-parole period of two years commencing on 30 November 2009 and expiring on 29 November 2011 with a balance of term of 2 years 6 months expiring on 29 May 2014. 3. In all other respects confirm the sentences imposed by the Judge. The earliest date on which the applicant will be eligible for release to parole is 29 November 2011.

CATCHWORDS: Criminal law - sentencing - robbery in company - sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900 s 94, s 97(1), s 99(1), s 99(2),
s 112(1), s 195(1),
Criminal Appeal Act 1912 s 6(3)

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Henry (1999) 46 NSWLR 346
R v MMK (2006) 164 A Crim R 481

PARTIES: Anthony McMenemy
Regina

FILE NUMBER(S): CCA 2007/15896

COUNSEL: C Smith (Applicant)
P Leask (Respondent)

SOLICITORS: Steve O'Connor Legal Aid Commission (Applicant)
S Kavanagh Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0928

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

2007/15896

GROVE J
BUDDIN J
PRICE J
27 February 2009

Anthony McMenemy v R

Judgment

1 GROVE J: I will ask Price J to deliver the first judgment.

2 PRICE J: On 28 February 2008 the applicant in the District Court adhered to the pleas of guilty which he had entered in the Local Court to six charges which had been commenced by Court Attendance Notices.

3 The first charge alleged a break, enter and steal between 2 April 2007 and 3 April 2007 contrary to s 112(1) of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment. The second charge alleged a demand property with menaces with intent to steal, whilst in company on 8 April 2007 contrary to s 99(2) of the Crimes Act. This offence also carries a maximum penalty of 14 years imprisonment. The third charge alleged a robbery in company on 8 April 2007 contrary to s 97(1) of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment. The fourth charge alleged malicious damage to property between 2 April 2007 and 3 April 2007 contrary to s 195(1) of the Crimes Act. The maximum penalty for this offence is 5 years imprisonment. The fifth charge alleged a demand property with menaces with intent to steal on 14 May 2007 contrary to s 99(1) of the Crimes Act. The…

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.

Keep reading for free

Create a free CaseChat account to read McMenemy v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWCCA 50
Decision Date: 27 February 2009

CaseChat Overview and Summary

In McMenemy v The Queen, the appellant challenged the severity of his sentence imposed for his involvement in a robbery committed in company. The matter was heard by the High Court of Australia. The appellant argued that the sentence of imprisonment, which was imposed for his role in the offence, was manifestly excessive.

The central legal issue for the court was whether the appellant's sentence was manifestly excessive and thus warranted a reduction. The appellant's counsel submitted that the sentence was disproportionate when compared to sentences imposed on co-offenders. The respondent, The Queen, argued that the sentence was within the appropriate range given the gravity of the offence and the appellant's role in it.

The High Court held that the sentence was not manifestly excessive. The court considered the principles of proportionality and the need to deter similar offences. It was noted that the appellant's role in the robbery was significant, and the sentence reflected the seriousness of the crime. The court found that the sentence was not disproportionate when compared to other similar cases. The appeal was dismissed, and the sentence was upheld.

Orders