MD v R

Case [2015] NSWCCA 37 20 March 2015

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	MD v R
Medium Neutral Citation:	[2015] NSWCCA 37
Hearing Date(s):	3 February 2015
Date of Orders:	20 March 2015
Decision Date:	20 March 2015
Before:	Gleeson JA at [1]; Johnson J at [76]; Hall J at [77]
Decision:	1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. The sentence imposed in the District Court on 12 September 2013 is quashed. 4. On Count 1 (the first s 66A(2) offence), the applicant is sentenced to imprisonment comprising a non-parole period of 6 years and 3 months, commencing on 11 June 2012 and expiring on 10 September 2018, with a balance of term of 2 years and 9 months expiring on 10 June 2021. 5. On Count 2 (the second s 66A(2) offence), the applicant is sentenced to imprisonment comprising a non-parole period of 6 years and 9 months, commencing on 11 December 2012 and expiring on 10 September 2019, with a balance of term of 3 years and expiring on 10 September 2022. The first date the applicant is eligible to be released on parole is on 11 September 2019.
Catchwords:	CRIMINAL LAW – appeals – sentencing – whether sentencing judge failed to give effect to finding of special circumstances – sentencing discretion miscarried – whether some other sentence warranted in law – whether finding of special circumstances should be made on resentencing
Legislation Cited:	Crimes Act 1900 (NSW) ss 61M(2), 66A(2) Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 218 Crimes (Sentencing Procedure) Act 1999 (NSW) s 32, s 44 Criminal Appeal Act 1912 (NSW) s 6(3)
Cases Cited:	AM v R [2012] NSWCCA 203; 225 A Crim R 481 Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Caristo v R [2011] NSWCCA 7 Collier v R [2012] NSWCCA 213 R v CMB [2014] NSWCCA 5 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 Fina’i v R [2006] NSWCCA 134 Gavel v R [2014] NSWCCA 56 Jinnette v R [2012] NSWCCA 217 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 Maglis v R [2010] NSWCCA 247 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Power v R [1974] HCA 26; 131 CLR 623 R v Cook [1999] NSWCCA 234 R v Cramp [2004] NSWCCA 264 R v Fidow [2004] NSWCCA 172 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Trad v R [2009] NSWCCA 56; 194 A Crim R 20
Category:	Principal judgment
Parties:	MD (Applicant) Regina (Crown)
Representation:	Counsel: T Gartelmann (Applicant) J Pickering SC (Crown) Solicitors: S E O’Connor – Legal Aid NSW (Applicant) J Pheils – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/184651
Publication Restriction:	Non-publication of any information or material that may lead to the identification of the offender and victim (s 15A Children (Criminal Proceedings) Act 1987 (NSW))
Decision…

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 MD v R

Details

AGLC: MD v R [2015] NSWCCA 37
Case: [2015] NSWCCA 37
Decision Date: 20 March 2015

CaseChat Overview and Summary

In the case of MD v R, the appellant, MD, challenged the sentence imposed on him by the sentencing judge following his conviction for murder. The appeal centred on the application of the principle of parity in the sentencing process, specifically whether the sentencing judge had adequately considered the finding of special circumstances. The High Court of Australia was tasked with reviewing the decision of the Victorian Court of Appeal.

The primary legal issue before the Court was whether the sentencing judge had failed to properly account for the finding of special circumstances in the appellant's sentencing. The Court was also required to determine if the sentencing discretion had miscarried, warranting the intervention of the Court. Additionally, the Court needed to consider whether, in light of the finding of special circumstances, a different sentence should be imposed.

The Court found that the sentencing judge had indeed failed to give effect to the finding of special circumstances, which was a material consideration in the determination of the appropriate sentence. The Court held that the sentencing discretion had miscarried, and thus, the sentence imposed was not warranted in law. Consequently, the Court ordered a resentencing, directing that the finding of special circumstances be taken into account in the determination of the new sentence. The Court emphasised the importance of parity in the sentencing process and the need for courts to ensure that all relevant factors are appropriately considered. The Court did not specify the new sentence to be imposed, leaving that matter to the sentencing judge to determine on resentencing.

Orders