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 48Category: Principal judgment Parties: Bradley William Melvaine (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr S Fraser (Applicant)
Ms K Jeffreys (Respondent)
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…
Continue reading Melvaine v The Queen
Sign in free to access the full text
- AGLC
- Melvaine v The Queen [2019] NSWCCA 274
- Case
- [2019] NSWCCA 274
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.