MJ v R

Case [2010] NSWCCA 52 23 April 2010

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New South Wales
Court of Criminal Appeal

CITATION: MJ v R, CPD v R [2010] NSWCCA 52

HEARING DATE(S): 22 March 2010

JUDGMENT DATE:
23 April 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 69

DECISION: For each applicant:-
1. Grant leave to appeal.
2. Dismiss appeal against sentence.

CATCHWORDS: CRIMINAL LAW — Sentencing — robbery in company inflicting grievous bodily harm — children — standard non-parole period does not apply to children — Children (Criminal Proceedings) Act s 6 — offenders nearly 18 years old — assistance to authorities — s 21A(3)(n) Crimes (Sentencing Procedure) Act — medical condition of offender

LEGISLATION CITED: Children (Criminal Proceedings) Act
Crimes (Sentencing Procedure) Act
Crimes Act

CASES CITED: KT v R (2008) 182 A Crim R 571
R v AN [2005] NSWCCA 239
R v Bus (Court of Criminal Appeal, 3 November 1995, unreported)
R v Gallagher (1991) 23 NSWLR 220
R v Henry (1999) 46 NSWLR 346
R v LNT [2005] NSWCCA 307
R v Smith (1987) 44 SASR 587

PARTIES: MJ - Appellant
CPD - Appellant
The Crown - Respondent

FILE NUMBER(S): CCA 2008/18244; 2008/18246

COUNSEL: T M Healey - for CPD
P Strickland SC - for MJ
J Girdham - Crown

SOLICITORS: Z Vasiljevic - Solicitor for CPD
S O'Connor (Legal Aid Commission) - for MJ
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/18244; 2008/18246

LOWER COURT JUDICIAL OFFICER: McLauchlan ADCJ

LOWER COURT DATE OF DECISION: 13 March 2009

2008/18244
2008/18246

McCLELLAN CJ at CL
JAMES J
ROTHMAN J
23 APRIL 2010

MJ v R

CPD v R

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: MJ and CPD applied for leave to appeal against sentences imposed on them in the District Court on 13 March 2009 by his Honour Acting Judge McLauchlan for an offence of robbery in company inflicting grievous bodily harm committed on 21 March 2008, to which each of the applicants had pleaded guilty. A third offender ER who had participated in the joint commission of the offence and who was also sentenced by Acting Judge McLauchlan on 13 March 2009 did not apply for leave to appeal.

3 The applicants are referred to by their initials in this judgment, because each of the applicants was under the age of 18 years when the offence was committed. MJ was born on 28 April 1990 and CPD was born on 31 August 1990. The third offender ER was born on 22 July 1990.

4 The sentencing judge imposed on each of the applicants (and also on the third offender) a head sentence of three years with a non-parole period of two years and directed that the sentences be served in a Juvenile Detention Centre. The sentencing judge did not expressly specify a date for the commencement of each sentence, so that it would appear that each sentence should be taken to have commenced on…

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 MJ v R

Details

AGLC: MJ v R, CPD v R [2010] NSWCCA 52
Case: [2010] NSWCCA 52
Decision Date: 23 April 2010

CaseChat Overview and Summary

In the matter of MJ v R, the respondent was convicted of robbery in company, involving the infliction of grievous bodily harm, and was sentenced in the District Court of New South Wales. The primary dispute centred on the appropriate sentencing considerations, particularly given the offender's age and medical condition. MJ, who was nearly 18 years old at the time of sentencing, raised issues regarding the applicability of the standard non-parole period under the Children (Criminal Proceedings) Act and the relevance of his medical condition under the Crimes (Sentencing Procedure) Act.

The court was required to determine whether the statutory provisions applicable to children should be applied to an offender who was nearly 18 years old, and whether the offender's medical condition warranted consideration as a mitigating factor. The court considered the provisions of section 6 of the Children (Criminal Proceedings) Act, which states that the standard non-parole period does not apply to children, and section 21A(3)(n) of the Crimes (Sentencing Procedure) Act, which allows for the consideration of mitigating factors, including medical conditions. The court also needed to evaluate the offender's assistance to the authorities as a mitigating factor.

The District Court found that, despite MJ being nearly 18 years old, the provisions of the Children (Criminal Proceedings) Act should still apply due to his age and the nature of the offence. The court acknowledged the offender's medical condition, which was considered to have some mitigating effect. Additionally, the offender's assistance to the authorities was recognised as a mitigating factor. The court balanced these considerations with the seriousness of the offence and determined the appropriate sentence. The final orders were delivered, taking into account the offender's age, medical condition, and assistance to the authorities, resulting in a sentence that reflected these mitigating factors.

Orders