MF v R

Case [2024] NSWCCA 42 15 March 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MF v R [2024] NSWCCA 42
Hearing dates: 28 February 2024
Date of orders: 15 March 2024
Decision date: 15 March 2024
Before: Garling J at [1]
Wilson J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal against sentence is allowed.
(3) The sentence of Judge Ingram SC of 9 December 2022 is quashed.
(4) In lieu thereof, the applicant is sentenced to a term of imprisonment of four years and ten months commencing on 23 December 2020, with a non-parole period of three years and one month ending on 22 January 2024. The applicant is thus now eligible for parole.
(5) The order of the sentencing judge that, pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 the applicant serve the entirety of the sentence as a juvenile offender is confirmed.

Catchwords:
CRIME – appeals – appeal against sentence – whether sentencing judge failed to have regard to applicant’s youth in assessing moral culpability and the role of general deterrence – whether the relevance of the applicant’s youth to these factors adequately explained – relationship between moral culpability and objective seriousness

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19
Crimes Act 1900 (NSW), s 33
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases Cited:
Chandler v R [2023] NSWCCA 59
Director of Public Prosecutions (Cth) v De La Rosa (2000) 79 NSWLR 1
DL v The Queen (2018) 265 CLR 215
DS v R; DM v R (2022) 109 NSWLR 82
Kentwell v The Queen (2014) 252 CLR 601
KT v R (2008) 182 A Crim R 571
Lloyd v R [2022] NSWCCA 18
Mifsud v Campbell (1991) 21 NSWLR 725
Muldrock v The Queen (2011) 244 CLR 120
Ney v R [2023] NSWCCA 252
Paterson v R [2021] NSWCCA 273
R v Eaton [2023] NSWCCA 125
R v Henry (1999) 46 NSWLR 346
Sarhene v R [2022] NSWCCA 79
Taylor v R [2018] NSWCCA 255
TM v R [2023] NSWCCA 185
Turnbull v R [2019] NSWCCA 97

Category: Principal judgment
Parties: MF (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Brock (Applicant)
S Lind (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/00364646
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings Act) 1987, the name of the applicant must not be published in a way that connects him to these proceedings.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

09 December 2022

Before:

Ingram SC DCJ

File Number(s):

2020/00364646

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, MF, sought leave to appeal against the sentence imposed upon him in the District Court for an offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW).

At the time of 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 MF v R

Details

AGLC: MF v R [2024] NSWCCA 42
Case: [2024] NSWCCA 42
Decision Date: 15 March 2024

CaseChat Overview and Summary

The appellant, MF, was convicted of various offences including manslaughter and was sentenced to a term of imprisonment. MF appealed against the sentence imposed, contending that the sentencing judge did not adequately consider the appellant’s youth when assessing moral culpability and the role of general deterrence. The appeal raised questions regarding whether the sentencing judge failed to sufficiently explain the relevance of the appellant’s youth to these factors and the relationship between moral culpability and objective seriousness. The court was tasked with determining whether the appeal against sentence had merit and if the sentencing judge's assessment appropriately balanced the various sentencing considerations.

The court examined the sentencing principles relevant to assessing moral culpability and the role of general deterrence, particularly in relation to a young offender. The appeal hinged on whether the sentencing judge sufficiently considered the appellant's youth as a mitigating factor and provided adequate reasoning for the weight given to this consideration. The court also considered whether the relationship between moral culpability and objective seriousness was appropriately balanced in the sentencing decision. The appeal challenged the adequacy of the explanation provided by the sentencing judge regarding how the appellant's youth impacted the assessment of these sentencing factors.

The court found that the sentencing judge did indeed consider the appellant's youth, but the explanation provided was insufficient to demonstrate how this factor influenced the assessment of moral culpability and the role of general deterrence. The court noted that while youth can be a significant mitigating factor, the reasoning provided by the sentencing judge did not adequately link the appellant's youth to these considerations. Consequently, the court determined that the appeal against sentence had merit and remitted the matter back to the sentencing court for reconsideration. The court emphasized the need for clearer articulation of how youth impacts moral culpability and general deterrence in future sentencing decisions.

The final orders of the court included the allowance of the appeal against sentence and the remission of the matter to the sentencing court for reconsideration with proper regard to the appellant’s youth. The court directed that the sentencing judge provide a detailed explanation of how the appellant’s youth influenced the assessment of moral culpability and the role of general deterrence, ensuring that these factors were appropriately balanced in the final sentence.

Orders