MH v R

Case [2022] NSWCCA 287 15 December 2022

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MH v R [2022] NSWCCA 287
Hearing dates: 17 June 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Before: Ward P at [1]
Mitchelmore JA at [2]
Lonergan J at [3]
Decision:
(1) To the extent necessary, extend time within which to file a notice of appeal until 13 October 2021.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – extension of time in which to appeal – sentenced and notice of intention filed in 2018 – appeal filed in 2021 – extension granted
CRIME – appeals – appeal against sentence – multiple offences – where background of very substantial disadvantage taken into account – whether error in application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 principles – whether error in not reducing offender’s moral culpability – no error shown
CRIME – appeals – appeal against sentence – assistance to authorities – provision of phone number resulting in sentencing of another offender for drug and other offences – whether 5% discount manifestly inadequate – no misapplication of principle or error shown
CRIME – appeals – appeal against sentence – multiple offences – custodial conditions significantly worse than contemplated – whether evidence “new” or “fresh” – whether evidence should be admitted – not “exceptional” – evidence not admitted – ground dismissed
CRIME – appeals – appeal against sentence – parity – specially aggravated kidnapping – whether sentencing judge failed adequately to consider each offender’s level of criminality and subjective cases – no justifiable sense of grievance

Legislation Cited:
Crimes Act 1900 (NSW), ss 86(3), 154C(2), 350
Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases Cited:
Brierley v The Queen [2022] NSWCCA 26
Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37
Fordham v R (1997) A Crim R 359
House v The King (1936) 55 CLR 499; [1936] HCA 40
Judge v R [2018] NSWCCA 203
Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
Perkins v R [2018] NSWCCA 62
R v Chaaban [2006] NSWCCA 107
R v Dungay [2020] NSWCCA 209
R v Munday [1981] 2 NSWLR 177
R v Vachalec (1981) 1 NSWLR 351; [1981] NSWCCA 26
WM v R [2020] NSWCCA 96
Wright v R [2016] NSWCCA 122

Category: Principal judgment
Parties: MH (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Woods / K Lloyd (Applicant)
A Morris (Respondent)
Solicitors:
Just Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2011/00413945
2012/00092150
2013/00248578
Publication restriction:
(1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the ground set out in s 8(1)(c), the Court makes a suppression and non-publication order in respect of anything that would identify the Applicant for leave to appeal in these proceedings.

(2) Order (1) shall remain…

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 MH v R

Details

AGLC: MH v R [2022] NSWCCA 287
Case: [2022] NSWCCA 287
Decision Date: 15 December 2022

CaseChat Overview and Summary

The case involved an appellant who was sentenced in 2018 and appealed against the sentence in 2021. The appeal was heard by the court, which had to determine several legal issues. Firstly, the court had to consider whether there was an error in the application of the principles outlined in Bugmy v The Queen, particularly in relation to the background of substantial disadvantage and its impact on the offender's moral culpability. Secondly, the court needed to assess whether the 5% discount for the appellant's assistance to the authorities was manifestly inadequate. Thirdly, the court had to decide if the evidence regarding the custodial conditions was "new" or "fresh" enough to warrant its admission. Lastly, the court needed to evaluate if there was a failure to adequately consider the level of criminality and subjective circumstances of each offender in the specially aggravated kidnapping case.

The court found that there was no error in the application of the Bugmy principles, as the sentencing judge had appropriately taken into account the appellant's background of substantial disadvantage. The 5% discount for the appellant's assistance to the authorities was deemed adequate, and the court found no misapplication of principle or error. Regarding the custodial conditions, the court determined that the evidence was not "new" or "fresh" enough to be admitted, and the ground of appeal was dismissed. Lastly, the court concluded that there was no justifiable sense of grievance in the sentencing judge's consideration of each offender's level of criminality and subjective circumstances in the specially aggravated kidnapping case.

The appeal was dismissed, and the original sentence was upheld. The court's decision was based on the proper application of legal principles, the adequacy of the discount for the appellant's assistance, and the inadmissibility of the evidence regarding custodial conditions. The court found no basis for reducing the sentence or finding error in the sentencing process.

Orders