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Melbom v R

Melbom v R

Case [2011] NSWCCA 22 28 February 2011

Sentencing

Criminal Liability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Melbom v Regina [2011] NSWCCA 22
Hearing dates: 2 September 2010
Decision date: 28 February 2011
Before: Macfarlan JA
Simpson J
Hall J
Decision:
(1) An order for the extension of time in which to apply for leave to appeal against sentence be granted.
(2) Leave to appeal in respect of the sentences imposed be granted.
(3) The appeal be dismissed.

Catchwords: SENTENCING IN RESPECT OF MULTIPLE OFFENCES - (nine offences - Crimes Act 1900, Criminal Code Act 2005, Firearms Act 1996) - application of principles of totality and proportionality - offences committed on same day not to be treated as part of one enterprise - each offence was objectively serious - concurrency and accumulation of sentences - principles correctly applied - sentences individually and in combination not manifestly excessive - appeal against sentences dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Code Act 2005 (Cth)
Firearms Act 1996
Cases Cited:
Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Cahyadi v Regina (2007) 168 A Crim R 41
Johnson v The Queen (2004) 78 ALJR 616 Nguyen v Regina [2007] NSWCCA 14
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
Regina v De Simoni (1981) 147 CLR 383
Regina v Holder (1983) 3 NSWLR 245
Regina v Merrin [2007] NSWCCA 255
Regina v MMK (2006) A Crim R 481
Regina v Saleib [2005] NSWCCA 85
Regina v Way (2004) 60 NSWLR 168
Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55
Regina v Wilson [2005] NSWCCA 219
Regina v XX [2009] NSWCCA 115
Vaovosa v Regina [2007] NSWCCA 253
Category: Principal judgment
Parties: Jason Neil MELBOM v REGINA
Representation: Counsel:
C: P Girdham
A: J Manuell SC
Solicitors:
C: S Kavanagh
A: S O'Connor

File Number(s): 2009/7678
Decision under appeal

Date of Decision:

2009-09-25 00:00:00

Before:

Hock DCJ

File Number(s):

2009/7678

Judgment

MACFARLAN JA : I agree with Hall J.

SIMPSON J : I agree with Hall J.

HALL J : By notice dated 13 April 2010, the applicant, Jason Neil Melbom, seeks leave to appeal against sentences imposed upon him by the District Court of New South Wales in relation to nine offences committed on 25 September 2009.

The appeal was out of time and, accordingly, leave is required for an extension of time to bring the application for leave to appeal.

Ms Manuell SC, who appeared on behalf of the applicant before this Court, stated that an application for an extension had been made on an earlier date and that time had been extended to 13 April 2010.

Whilst it was stated on behalf of the Crown that that did not accord with its instructions, the Crown indicated at the hearing that it did not oppose an application for an extension of time. In those…

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 [2011] NSWCCA 22
Case: [2011] NSWCCA 22
Decision Date: 28 February 2011

CaseChat Overview and Summary

The appellant was sentenced to imprisonment for nine offences, including charges under the Crimes Act 1900, Criminal Code Act 2005, and the Firearms Act 1996. The offences were committed on the same day and involved multiple victims. The appellant brought an appeal against the sentence, arguing that the principles of totality and proportionality had not been correctly applied by the sentencing judge. The appeal specifically contested the treatment of the offences, the concurrency and accumulation of sentences, and the overall severity of the sentence.

The court examined whether the sentencing judge correctly applied the principles of totality and proportionality. The court found that the judge had appropriately considered the seriousness of each offence individually and in combination, ensuring that the sentences were not manifestly excessive. The court further determined that the offences, while occurring on the same day, were not part of a single enterprise and should be treated as separate incidents. Each offence was found to be objectively serious, justifying the imposition of separate sentences that, when considered individually and cumulatively, were proportionate to the appellant's culpability.

In reaching its decision, the court highlighted that the sentencing judge had correctly applied the principles of concurrency and accumulation of sentences. The court affirmed that the sentences imposed were neither manifestly excessive nor disproportionate, taking into account the gravity of the offences and the need for general deterrence. The appeal was ultimately dismissed, with the court upholding the sentences as appropriate and just.

No further orders were made by the court beyond dismissing the appeal against the sentences.

Orders