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Mundine v R

Mundine v R

Case [2017] NSWCCA 97 17 May 2017

Appeal

Sentencing

Correction of Sentence

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mundine v R [2017] NSWCCA 97
Hearing dates: 1 May 2017
Decision date: 17 May 2017
Before: Basten JA at [1];
Adamson J at [30];
Campbell J at [115]
Decision:
(1)   Grant leave to appeal against sentence.

(2)   Allow the appeal against sentence.

(3)   Quash the aggregate sentence imposed by Colefax DCJ on 27 September 2016 and the order directing the applicant’s release on 27 September 2016.

(4)   For the offence of common assault, impose a sentence of imprisonment for a fixed term of 6 months, commencing on 28 March 2015 and expiring on 27 September 2015.

(5)   For the offence of contravene apprehended violence order, impose a sentence of imprisonment for a fixed term of 6 months, commencing on 28 June 2015 and expiring on 28 December 2015.

(6)   For the offence of assault occasioning actual bodily harm, impose a sentence of imprisonment of 2 years, commencing on 28 June 2015 and expiring on 27 June 2017, with a non-parole period of 1 year and 3 months, commencing on 28 June 2015 and expiring on 27 September 2016.

(7)   For the offence of reckless wounding, impose a sentence of 2 years and 3 months, commencing on 28 June 2016 and expiring on 27 September 2018, with a non-parole period of 3 months, commencing on 28 June 2016 and expiring on 27 September 2016.
(8)   Direct that the applicant be released to parole on 27 September 2016.
Catchwords:
CRIMINAL LAW – appeal – aggregate sentencing – whether aggregate sentence manifestly excessive – where trial judge erred in directing the applicant’s release where sentence exceeded three years’ imprisonment – release to parole a matter for Parole Authority

CRIMINAL LAW – correction of sentence under s 43 of Crimes (Sentencing Procedure) Act – importance of making and entering order

CRIMINAL LAW – effect of s 53A of Crimes (Sentencing Procedure) Act – restrictions on commencement dates in s 47 inapplicable to aggregate sentences – mathematical effect to allow greater latitude in adjusting statutory ratio for an aggregate sentence than where individual sentences imposed

CRIMINAL LAW – effect of certificate under s 166(1) of Criminal Procedure Act – applicable jurisdictional limit constraint on sentence that can be imposed for offence on certificate
SENTENCING – re-sentence – appellate court not bound by sentencing judge’s decision to impose aggregate sentence if individual sentences thought to be more appropriate in circumstances of particular case
Legislation Cited: Bail Act 2013 (NSW), s 22
Crimes Act 1900 (NSW), ss 35, 59, 61; Sch 1
Criminal Appeal Act 1912 (NSW), ss 5, 6
Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Crimes (Domestic and Personal Violence) Act 2007(NSW), s14
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 22, 23, 43, 44, 47, 48, 50, 53A, 54B, 62
Criminal Procedure Act 1986 (NSW), ss 165, 166, 167, 168, 268
Cases Cited: AB v R [2014] NSWCCA 31
Cross v R (No 2) [2012] NSWCCA 234
Fox v…

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 Mundine v R

Details

AGLC: Mundine v R [2017] NSWCCA 97
Case: [2017] NSWCCA 97
Decision Date: 17 May 2017

CaseChat Overview and Summary

The case of Mundine v R was heard in the Court of Criminal Appeal. The matter involved an appeal against an aggregate sentence imposed on the applicant, Mundine. Mundine contested the aggregate sentence, arguing it was manifestly excessive and should be reviewed. The appeal further contended that the trial judge erred in directing Mundine's release due to the sentence exceeding three years' imprisonment, and that release to parole was a matter for the Parole Authority.

The court had to determine whether the aggregate sentence was manifestly excessive, as argued by Mundine. Additionally, it had to consider the procedural implications of the trial judge's direction for Mundine's release due to the sentence length, and whether such a direction was appropriate given that parole decisions are under the jurisdiction of the Parole Authority. The court also needed to examine the implications of section 43 of the Crimes (Sentencing Procedure) Act, which deals with the correction of sentences, and whether the trial court's failure to make and enter a specific order was significant. Furthermore, the court had to assess the effect of section 53A of the Crimes (Sentencing Procedure) Act, which pertains to the restrictions on commencement dates in section 47, and how these provisions apply differently to aggregate sentences.

The Court of Criminal Appeal found that the aggregate sentence was not manifestly excessive and that the trial judge's direction for Mundine's release was not appropriate as parole decisions fall within the jurisdiction of the Parole Authority. The court held that the failure to make and enter a specific order under section 43 of the Crimes (Sentencing Procedure) Act did not affect the validity of the sentence. Regarding section 53A, the court determined that the restrictions on commencement dates in section 47 do not apply to aggregate sentences, allowing for a greater latitude in adjusting the statutory ratio for aggregate sentences compared to individual sentences. The appeal was dismissed, and the original sentence upheld.

The Court of Criminal Appeal dismissed the appeal and confirmed the original sentence imposed on Mundine.

Orders