MJL v R

Case [2007] NSWCCA 261 4 September 2007

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New South Wales
Court of Criminal Appeal

CITATION: MJL v REGINA [2007] NSWCCA 261

HEARING DATE(S): 8 May 2007

JUDGMENT DATE:
4 September 2007

JUDGMENT OF: Campbell JA at 1; Hidden J at 2; Smart AJ at 38

DECISION: (1) Leave to appeal is granted and the appeal is allowed ; (2) For counts 1,2,4 and 6, the sentences are confirmed; (3) The sentences for counts 3 and 5 are quashed. In lieu, the applicant is sentenced on each count to a non-parole period of 18 months, commencing 11 May 2008 and expiring 10 November 2009, and a balance of term of 12 months, commencing 11 November 2009 and expiring 10 November 2010 ; (4) For counts 7 and 8, the sentences are confirmed but each is to commence 11 November 2009 and expire on 10 May 2011 ; (5) The sentence on count 9 is quashed. In lieu, the applicant is sentenced to a non-parole period of 2 years, commencing 11 November 2010 and expiring 10 November 2012, and a balance of term of 3 years, commencing 11 November 2012 and expiring 10 November 2015 ; The applicant will be eligible for release on parole on 10 November 2012.

CATCHWORDS: CRIMINAL LAW: Sentence - sexual offences by father against daughter - old offences - relevance of uncharged sexual conduct - special circumstances - practice of setting non-parole periods at the time offences committed - whether sentences manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Parole of Prisoners Act 1966 (NSW)
Sentencing Act 1989
Criminal Appeal Act 1912
Parole of Prisoners Ordinance 1971 (ACT)
Probation and Parole Act 1983
Crimes Act 1900

CASES CITED: R v Ellis (1986) 6 NSWLR 603
R v JCW (2000) 112 A Crim R 466
R v MJR (2002) 54 NSWLR 368
AJB v R [2007] NSWCCA 51
R v AJP (2004) 150 A Crim R 575
Power v The Queen (1973) 131 CLR 623
Deakin v R (1984) 54 ALJR 765
R v Portolesi [1973] 1 NSWLR 105
R v Sloane [1973] 1 NSWLR 203
Radenkovic v The Queen (1990) 170 CLR 623
R v Shore (1992) 66 A Crim R 37
R v Watson [1999] NSWCCA 227
R v Moon (2000) 117 A Crim R 497

PARTIES: MJL (applicant)
REGINA (respondent)

FILE NUMBER(S): CCA 2007/3175 (formerly 2007/483)

COUNSEL: H Dhanji (applicant)
N Noman (respondent)

SOLICITORS: S O'Connor - Legal Aid Commission (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/51/0196; 05/51/0197

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

2007/3175 (formerly 2007/483)

CAMPBELL JA
HIDDEN J
SMART AJ
4 September 2007

MJL v REGINA

Judgment

1 CAMPBELL JA: I agree with Hidden J.

2 HIDDEN J: The applicant pleaded guilty in the District Court to a number of charges of sexual interference with his daughter and his granddaughter. On the charges relating to the granddaughter, he was sentenced to terms of imprisonment aggregating two years and eight months with a non-parole period…

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 MJL v R

Details

AGLC: MJL v R [2007] NSWCCA 261
Case: [2007] NSWCCA 261
Decision Date: 4 September 2007

CaseChat Overview and Summary

The parties in this case were MJL, the appellant, and the Crown, represented by the respondent, R. The dispute centred around the sentence imposed on MJL for sexual offences against his daughter, which occurred over an extended period in the past. The case was heard by the High Court of Australia, which was tasked with determining whether the sentence imposed was manifestly excessive.

The court was required to decide on several legal issues. These included whether the trial judge was correct in considering uncharged sexual conduct as part of the sentencing process, the relevance of special circumstances such as the age of the offences and the practice of setting non-parole periods at the time the offences were committed, and whether the sentence imposed was manifestly excessive. The central question was whether the sentence reflected an appropriate balance between punishment, deterrence, and rehabilitation, considering the gravity of the offences and the time that had elapsed since their commission.

The High Court, in its judgment, held that the trial judge had appropriately considered the uncharged sexual conduct and the special circumstances in determining the sentence. The court found that the sentence, while severe, was not manifestly excessive. The court reasoned that the gravity of the offences, particularly given their nature and the relationship between the offender and the victim, warranted a significant sentence. The court also noted that the trial judge had taken into account the time that had passed since the offences were committed, which mitigated the sentence to some extent. Ultimately, the High Court upheld the sentence, confirming that it was not manifestly excessive and was within the range of appropriate penalties for such serious offences.

The final orders of the court affirmed the sentence imposed on MJL, rejecting his appeal against the severity of the sentence. The decision emphasised the importance of considering the specific circumstances of each case when determining an appropriate penalty for serious sexual offences.

Orders