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Musgrove v R

Musgrove v R

Case [2007] NSWCCA 21 12 February 2007

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Reported Decision: 167 A Crim R 424

New South Wales

Court of Criminal Appeal

CITATION: Musgrove v R [2007] NSWCCA 21
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 February 2007

JUDGMENT DATE:
12 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Price J at 55

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: CRIMINAL LAW - sentencing - standard non-parole period - application to appeal against severity of sentence - aggravated sexual assault - plea of guilty - prior criminal record - current bond to be of good behaviour - discount for plea of guilty - special circumstances not found - whether error in failing to find special circumstances - determination of special circumstances discretionary - whether error in failing to impose parole period in statutory proportion to the head sentence - no requirement to give reasons for sentence in which the balance of term is less than one third of the non-parole period - changes in sentencing legislation - course of legislative amendment - court required first to set non-parole period and secondly to set a balance of term - grant of parole not automatic - no statutory requirement that non-parole period first be determined - whether sentence imposed manifestly excessive - sentence within range legitimately available

LEGISLATION CITED: Crimes Act 1900 s61J
Crimes Legislation Amendment (Sentencing) Act 1999, s44, s45
Crimes (Sentencing Procedure) Act 1999 Division 1A, Part 4 s9, s44, s45, s54A, s54B
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) 2002 No 90
Probation and Parole Act 1983, s19, s20A, s21
Probations and Parole (Serious Offences) Amendment Act 1987
Sentencing Act 1989, s5

CASES CITED: R v Hampton (1998) 44 NSWLR 729
R v Huynh [2005] NSWCCA 220
R v Moffitt (1990) 20 NSWLR 114
R v P [2004] NSWCCA 218
R v Simpson [2001] NSWCCA 543; 53 NSWLR 704
R v Tobar [2004] NSWCCA 391; 150 A Crim R 104
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Darren Musgrove - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2006/2279

COUNSEL: J Chicken - Applicant
R Barrett - Respondent

SOLICITORS: S O'Connor - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0021

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 30 March 2006

2006/2279

McCLELLAN CJ at CL
SIMPSON J
PRICE J
Monday 12 February 2007

Darren MUSGROVE v REGINA

Judgment

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

2 SIMPSON J: On 13 February 2006 the applicant pleaded guilty in the Local Court at Lismore to a single charge of aggravated sexual assault, committed on 13 February 2004. Pursuant to s61J of the Crimes Act 1900 such an offence carries a maximum penalty of imprisonment for 20 years. Pursuant to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) the…

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 Musgrove v R

Details

AGLC: Musgrove v R [2007] NSWCCA 21
Case: [2007] NSWCCA 21
Decision Date: 12 February 2007

CaseChat Overview and Summary

In the case of Musgrove v R, the appellant, Musgrove, appealed against the severity of his sentence for aggravated sexual assault, having pleaded guilty to the offence. Musgrove had a prior criminal record and was currently subject to a bond to be of good behaviour. The sentence imposed included a discount for the plea of guilty and did not include a parole period, as the balance of the term was less than one-third of the non-parole period. The court was required to determine whether there was an error in the sentencing process, particularly in relation to the failure to find special circumstances and the determination of the parole period.

The legal issues before the court included whether there was an error in the sentencing process by failing to find special circumstances, the discretionary nature of determining special circumstances, whether there was an error in not imposing a parole period in proportion to the head sentence, and whether the court was required to provide reasons for the sentence where the balance of the term was less than one-third of the non-parole period. The court also considered changes in sentencing legislation and the legislative amendments that shifted the focus from the balance of the term to the non-parole period. Additionally, the court examined whether the sentence imposed was manifestly excessive and whether it fell within the range legitimately available.

The court found that the determination of special circumstances was discretionary and that there was no error in the failure to find such circumstances. The court also held that there was no error in not imposing a parole period in proportion to the head sentence, as the balance of the term was less than one-third of the non-parole period. The court clarified that there was no statutory requirement that the non-parole period must be determined first. Furthermore, the court concluded that the sentence imposed was not manifestly excessive and was within the range legitimately available. The appeal was ultimately dismissed, and the original sentence was upheld.

No specific orders were made beyond the dismissal of the appeal and the affirmation of the original sentence. The court did not alter the sentence but confirmed that the process and rationale behind the original sentencing were sound.

Orders