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Melvaine v The Queen

Melvaine v The Queen

Case [2019] NSWCCA 274 11 November 2019

Appeal

Sentencing

Manifestly Excessive Sentence

Subjective Factors

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Melvaine v R [2019] NSWCCA 274
Hearing dates: 9 October 2019
Date of orders: 11 November 2019
Decision date: 11 November 2019
Before: Macfarlan JA at [1]
Johnson J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal against the sentence is granted.
(2) The appeal is dismissed.

Catchwords: CRIME — appeals — appeal against sentence — application for leave to appeal — one count of aggravated robbery with wounding contrary to s 96 of the Crimes Act 1900 (NSW) — sentencing judge's description of applicant's conduct as a 'gratuitous act of cruelty' went to the objective seriousness of the offence — no finding made of an aggravating factor under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW) although this was open to sentencing judge — whether sentence was manifestly excessive — whether sentencing judge failed to have due regard to applicant's subjective factors — no error in sentencing process — appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 96
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(f)
Cases Cited: Aguirre v R [2010] NSWCCA 115
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Hughes v R [2018] NSWCCA 2
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
Ryan Gurney v Regina; Aaron Willetts v Regina [2011] NSWCCA 48
Category: Principal judgment
Parties: Bradley William Melvaine (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Fraser (Applicant)
Ms K Jeffreys (Respondent)
Solicitors:
Aboriginal Legal Service NSW/ACT (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/57243
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 September 2018

Before:

Zahra SC DCJ

File Number(s):

2016/57243

Judgment

MACFARLAN JA: I agree with Cavanagh J.
JOHNSON J: I agree with Cavanagh J.
CAVANAGH J: By notice of application for leave to appeal filed on 2 July 2019, the applicant, Bradley William Melvaine, seeks leave to appeal from a sentence imposed by the District Court of New South Wales at Sydney on 13 September 2018 with respect to a single count of aggravated robbery with wounding, pursuant to s 96 of the Crimes Act 1900 (NSW).
The applicant originally entered a plea of not guilty. Following a hearing on the voir dire, the applicant pleaded guilty to the charge. The offence carries a maximum penalty of imprisonment for 25 years.
On 13 September 2018, the applicant was sentenced to imprisonment for a period of eight years and six months, with a non-parole period of six years. The sentencing judge allowed a discount of 15 per cent on account of the utilitarian value of the plea of guilty.
The applicant is eligible for release on parole on 21 February 2022.
The applicant appeals against his sentence. There are two grounds of appeal as follows:

Ground 1: 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.

Continue reading Melvaine v The Queen

Details

AGLC: Melvaine v The Queen [2019] NSWCCA 274
Case: [2019] NSWCCA 274
Decision Date: 11 November 2019

CaseChat Overview and Summary

In the case of Melvaine v The Queen, the appellant, Melvaine, sought to appeal against his sentence imposed by the District Court of New South Wales for the crime of aggravated robbery with wounding. The dispute centred around the severity of the sentence and whether the sentencing judge appropriately considered the factors relevant to the case. The High Court of Australia was tasked with determining whether the sentence was manifestly excessive and if the sentencing judge failed to appropriately consider the appellant's subjective circumstances.

The legal issues before the court were whether the description of the appellant's conduct as a 'gratuitous act of cruelty' by the sentencing judge correctly reflected the objective seriousness of the offence, and whether there was an omission to find an aggravating factor under section 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW), even though such a finding was open to the sentencing judge. Additionally, the court examined whether the sentence was manifestly excessive and if the sentencing judge failed to adequately consider the appellant's subjective factors.

The court found that there was no error in the sentencing process. The judges held that the sentencing judge's characterisation of the appellant's actions was appropriate and that the objective seriousness of the crime was accurately reflected. The court also determined that it was open to the sentencing judge not to find an aggravating factor under section 21A(2)(f), and that there was no failure to consider the appellant's subjective circumstances. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders