MDZ v R

Case [2011] NSWCCA 243 15 November 2011

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Court of Criminal Appeal

New South Wales

Case Title: MDZ v REGINA

Medium Neutral Citation: [2011] NSWCCA 243

Hearing Date(s): Tuesday 17 May 2011

Decision Date: 15 November 2011

Jurisdiction:

Before:
Tobias AJA at [1]
Johnson J at [2]
Hall J at [3]

Decision:
(1) Leave to appeal granted and sentences imposed on 30 April 2010 are quashed.
(2) That in respect of Count 1, the applicant be re-sentenced to a term of imprisonment of 4 years comprised of a non-parole period of 2 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2011 with a balance of term of 18 months to commence on 20 October 2011 and to expire on 19 April 2013.
(3) That in respect of Count 2, that the applicant be re-sentenced to a term of imprisonment of 8 years, concurrent with the sentence imposed in respect of Count 1, comprised of a non-parole period of 5 years to date from 20 April 2009 and to conclude on 19 April 2014 with a balance of term of 3 years to commence on 20 April 2014 and to expire on 19 April 2017.
The total effective sentence in respect of the offences is, accordingly, the sentence in respect of Count 2.
Accordingly, the first date on which the applicant will be eligible for parole is 19 April 2014.

Catchwords:
CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - whether mental health and intoxication relevant to assessing the objective seriousness of the offence - proper application of the standard non-parole period - application of Muldrock v R [2011] HCA 39; 85 ALJR 1154

Legislation Cited:
Crimes Act 1900

Cases Cited:
HJWG v R [2011] NSWCCA 50
House v The King (1936) 55 CLR 499
Monteiro v R [2011] NSWCCA 113
Muldrock v R [2011] HCA 39; 85 ALJR 1154
R v Coleman (1990) 47 A Crim R 306
R v Knight; Biuvanua (2007) 176 A Crim R 338
R v McEvoy [2010] NSWCCA 110
R v Sellars [2010] NSWCCA 133
R v Way (2004) 60 NSWLR 168
Waters v R [2007] NSWCCA 219

Texts Cited:

Category: Principal judgment

Parties:
MDZ v REGINA

Representation

- Counsel:
C: J Pickering
A: R Burgess

- Solicitors:
C: S Kavanagh
A: S E O'Connor

File number(s): 2009/78557

Decision Under Appeal

- Court / Tribunal:

- Before: Finnane DCJ

- Date of Decision: 30 April 2010

- Citation:

- Court File Number(s) 2009/78557

Publication Restriction:

JUDGMENT

TOBIAS AJA: I agree with Hall J.
JOHNSON J: I agree with Hall J
HALL J: On 7 January 2011, the applicant sought leave to appeal in respect of sentences imposed on him by the District Court on 30 April 2010 in relation to two offences of aggravated sexual intercourse without consent pursuant to s.61J of the Crimes Act 1900.
He requested that a related matter of indecent assault be taken into account on a Form 1 on the second count.
An offence under…

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 MDZ v R

Details

AGLC: MDZ v R [2011] NSWCCA 243
Case: [2011] NSWCCA 243
Decision Date: 15 November 2011

CaseChat Overview and Summary

The appellant, MDZ, was convicted of serious criminal offences and appealed against the sentence imposed by the lower court. The appeal centred on the contention that the sentence was manifestly excessive. A key aspect of the appeal was the relevance of the appellant’s mental health and level of intoxication at the time of the offence in assessing the objective seriousness of the crime. The appeal also questioned whether the standard non-parole period was properly applied. The case relied on the principles established in Muldrock v R, which address the factors relevant to sentencing in criminal matters.

The central legal issues before the court were whether the sentence imposed was manifestly excessive, and if the lower court had appropriately considered the appellant’s mental health and intoxication in assessing the seriousness of the offence. Additionally, the court had to determine if the standard non-parole period was correctly applied in light of the unique circumstances of the case. The appellant argued that the lower court had failed to adequately weigh these factors, leading to an unjust sentence.

In evaluating the appeal, the court considered the principles set out in Muldrock v R, which require a comprehensive assessment of the circumstances of the offence and the offender. The court examined the evidence related to the appellant’s mental health and intoxication, determining that these factors were relevant to the assessment of the seriousness of the offence. However, the court found that while these circumstances were significant, they did not warrant a reduction in the sentence to the extent argued by the appellant. The court concluded that the sentence imposed was not manifestly excessive and that the lower court had appropriately applied the standard non-parole period.

The appeal was ultimately dismissed, with the court affirming the sentence imposed by the lower court. The decision underscored the importance of a balanced approach in sentencing, taking into account both the gravity of the offence and the personal circumstances of the offender, while adhering to established legal principles.

Orders