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Melbom v R

Melbom v R

Case [2013] NSWCCA 210 9 September 2013

Reckless Wounding

Threatening to Use an Offensive Weapon

Sentencing

Domestic Violence

Aggravating Factors

Special Geographic Vulnerability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Melbom v R [2013] NSWCCA 210
Hearing dates: 2 August 2013
Decision date: 09 September 2013
Before: Simpson J at [1]
Price J at [3]
R A Hulme J at [4]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - reckless wounding and threatening to use an offensive weapon - appellant a housemate of victims - offences committed in shared premises - sentencing judge considered the location of crime at a "home" as an aggravating feature of the offence - s 21A(2)(eb) Crimes (Sentencing Procedure) Act considered - special geographic vulnerability of victims of domestic violence - no overstatement of objective seriousness - relevant matters in consideration of circumstances of offending
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment Act 2007
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
DJM v R [2013] NSWCCA 101
DS v R [2012] NSWCCA 159
EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740
Essex v R [2013] NSWCCA 11
Ingham v R [2011] NSWCCA 88
NLR v R [2011] NSWCCA 246
OH Hyunwook v R [2010] NSWCCA 148
R v BIP [2011] NSWCCA 224
R v Engert (1995) 84 A Crim R 67
R v Gazi Comert [2004] NSWCCA 125
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v MH [2011] NSWCCA 230
Texts Cited: New South Wales Legislative Council, Parliamentary Debates, Hansard, 17 October 2007
Category: Principal judgment
Parties: Peter Melbom (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms A Moen (Applicant)
Ms T Smith (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2011/95605
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-03-01 00:00:00

Before:

Syme DCJ

File Number(s):

2011/95605

Judgment

SIMPSON J: I have read in draft the judgment of R A Hulme J. I agree with his Honour's analysis and the orders he proposes. In relation to Ground 1, I note that the Crown initially sought to challenge the correctness of previous decisions of this Court that hold that the aggravating feature specified in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (that the offence was committed in the home of the victim or any other person) does not extend to offences committed in the home of the victim if the offender lives in the same home. The Crown expressly abandoned that challenge. Why that course was taken is not apparent.

I understand R A Hulme J to have expressed some reservations about the principle stated. I share those reservations. It is, perhaps, time for re-examination by this Court of those previous decisions.

PRICE J: I agree with R A Hulme J and the additional remarks of Simpson J.

R A HULME J: Peter Melbom ("the applicant") stabbed a man in the chest. Then when the man's partner said she was…

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 Melbom v R

Details

AGLC: Melbom v R [2013] NSWCCA 210
Case: [2013] NSWCCA 210
Decision Date: 09 September 2013

CaseChat Overview and Summary

In this matter, the appellant, Melbom, was convicted of reckless wounding and threatening to use an offensive weapon. The victim was a housemate of the appellant, and the offences occurred within the shared premises. The appeal was directed towards the sentence imposed, specifically the consideration by the sentencing judge of the location of the crime as an aggravating feature of the offence. The appeal was heard by the Court of Criminal Appeal of New South Wales, the highest court in the state of New South Wales for criminal matters.

The legal issues for the court's determination included whether the sentencing judge erred in considering the location of the crime as an aggravating factor and whether the sentence was manifestly excessive. The appellant argued that the sentencing judge did not appropriately consider the special geographic vulnerability of victims of domestic violence. The respondent, the Crown, contended that the sentencing judge correctly exercised their discretion in considering the aggravating factors and that the sentence was appropriate.

The Court of Criminal Appeal considered that the sentencing judge did not overstate the objective seriousness of the offence by considering the location of the crime as an aggravating factor. The court recognised that the shared residence of the victim and the appellant created a special geographic vulnerability for the victim, but held that the sentencing judge was entitled to consider the home as a place of safety and the breach of that expectation as an aggravating feature. The court also found that the sentence was not manifestly excessive and appropriately reflected the seriousness of the offending.

The appeal was dismissed. The original sentence imposed by the sentencing judge was upheld.

Orders