Bathurst CJ at [1] Johnson J at [2] R S Hulme AJ at [144]
Decision:
1. The Applicant is granted an extension of time to 30 October 2015 to apply for leave to appeal against conviction and sentence. 2. The Applicant is granted leave to appeal against conviction. 3. The conviction appeal is dismissed. 4. The Applicant is granted leave to rely upon Ground 1(b) on sentence. 5. The Applicant is granted leave to appeal against sentence. 6. The sentence appeal is dismissed.
Catchwords:
CRIMINAL LAW – appeal against conviction– offence of specially aggravated break and enter and committing serious indictable offence – s.112(3) Crimes Act 1900 – plea of guilty in District Court – whether plea of guilty occasioned a miscarriage of justice – plea of guilty by Applicant in open court – Applicant understood elements of the offence – decision to plead guilty was voluntary and not a product of undue or improper pressure – Applicant considered it to be in his interests to plead guilty – miscarriage of justice not established – conviction appeal dismissed
CRIMINAL LAW – appeal against sentence – whether admission of statement of facts occasioned a miscarriage of justice – Applicant aware of elements of offence and circumstances of offence – miscarriage of justice not established – whether failure to adduce evidence of Applicant’s mental condition caused a miscarriage of justice – such evidence would not have assisted Applicant on sentence – miscarriage of justice not established – whether sentence manifestly excessive – no error in finding it was an extremely serious s.112(3) offence – sustained hammer attack to head of victim – Applicant on parole at the time of the offence with significant criminal history for robbery and other offences – substantial discount for assistance to authorities – sentence not manifestly excessive – sentence appeal dismissed
[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.
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Details
AGLC
Mm v R [2016] NSWCCA 235
Case
[2016] NSWCCA 235
Decision Date
CaseChat Overview and Summary
In the case of Mm v R, the applicant, Mm, was appealing against both his conviction and the sentence imposed by the District Court. Mm was found guilty of specially aggravated break and enter and committing a serious indictable offence. He had pleaded guilty to the charges in open court, and the court was required to determine whether this plea had led to a miscarriage of justice. Additionally, Mm appealed the severity of his sentence, arguing that the admission of a statement of facts and the failure to consider his mental condition led to an unjust outcome. The court also had to consider whether the sentence was manifestly excessive.
The legal issues before the court were whether the applicant's plea of guilty had led to a miscarriage of justice, whether the admission of a statement of facts or the failure to adduce evidence of the applicant's mental condition caused a miscarriage of justice, and whether the sentence imposed was manifestly excessive. The court examined the voluntariness of the guilty plea and whether it was made under undue pressure, the relevance of the applicant's mental condition to the sentencing process, and the proportionality of the sentence in light of the seriousness of the offence and the applicant's criminal history.
The court found that the applicant's plea of guilty was voluntary and not the result of any undue or improper pressure. Mm had understood the elements of the offence and considered it to be in his interests to plead guilty. The court held that there was no miscarriage of justice in the plea. Regarding the sentence, the court determined that the applicant was aware of the elements of the offence and the circumstances, and that the admission of a statement of facts did not occasion a miscarriage of justice. The court also found that evidence of Mm's mental condition would not have assisted him on sentence and did not establish a miscarriage of justice. Finally, the court concluded that the sentence was not manifestly excessive, given the extremely serious nature of the offence, Mm's significant criminal history, and the substantial discount for assistance to authorities.
The appeals against both conviction and sentence were dismissed by the court. The court affirmed that Mm's plea of guilty was voluntary and that the sentence was proportionate to the gravity of the offence and the applicant's criminal history.