MW v The Queen - [2010] NSWCCA 324

New South Wales
Court of Criminal Appeal

CITATION: MW v R [2010] NSWCCA 324

HEARING DATE(S): 10 December 2010

JUDGMENT DATE:
17 December 2010

JUDGMENT OF: Simpson J at 1; Blanch J at 64; Garling J at 68

DECISION: (i) leave to appeal granted, the appeal allowed, the sentence imposed on 15 January 2010 quashed;
(ii) in lieu thereof, the applicant be sentenced to imprisonment for 2 years and 9 months, commencing on 25 August 2009 and expiring on 24 May 2012, made up of a non-parole period of 1 year and 6 months, expiring on 24 February 2011, and a balance of term of 15 months.
(iii) direct the release of the applicant at the expiration of the non-parole period.

CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – aggravated robbery with wounding - CRIMINAL LAW – appeal against sentence – delay between offence and sentence – applicant subject to sentence imposed in Local Court in respect of other offence – period of custody previously served not taken into account – successful appeal to District Court after further sentence imposed – appellant re-sentenced – impact of re-sentence on commencement date – accumulation of sentences – offender a child at the time of offending – relevant sentencing factor – appeal allowed, applicant re-sentenced - CRIMINAL LAW – appeal against severity of sentence – failure to take into account relevant circumstances – voluntary disclosure of offence – entitlement to application of principles stated in R v Ellis – entitlement to application of principles stated in R v Fernando – steps taken by offender towards rehabilitation – greater reduction in sentence warranted

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: BP v R [2010] NSWCCA 159
R v Ellis (1986) 6 NSWLR 603
R v Fernando (1992) 76 A Crim R 58
R v Hearne [1999] NSWSC 605
R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
R v Pham and Ly (1991) 55 A Crim R 128
R v SDM [2001] NSWCCA 158; 51 NSWLR 530

PARTIES: MW (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/13543

COUNSEL: M Johnston (Applicant)
J Pickering (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): 2007/11/0304

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 15 January 2010

2007/13543

SIMPSON J
BLANCH J
GARLING J
17 December 2010

MW v R

Judgment

1 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 15 January 2010, following his plea of guilty to a charge of aggravated robbery with wounding. Section 96 of the Crimes Act 1900 provides a maximum penalty of imprisonment for 25 years for such an offence. Williams DCJ sentenced the applicant to imprisonment for 3 years and 3 months, made up of a…

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 MW v The Queen

Details

AGLC: MW v The Queen [2010] NSWCCA 324
Case: [2010] NSWCCA 324
Decision Date: 17 December 2010

CaseChat Overview and Summary

The case of MW v The Queen involved an appeal against both the sentence and its severity, in relation to an aggravated robbery with wounding offence committed when the appellant was a minor. The Court of Appeal was tasked with examining whether the sentence was appropriate and if the trial judge had failed to consider relevant mitigating factors.

The primary legal issues addressed by the court were whether the sentence was unjustifiably severe and whether the trial judge had erred in not adequately considering the appellant's age at the time of the offence, the voluntary disclosure of the crime, and the steps taken towards rehabilitation. The court also considered the impact of the delay between the offence and sentencing, as well as the period of custody already served by the appellant.

The Court of Appeal found that the trial judge had not sufficiently accounted for the appellant's age at the time of the offence, which is a pertinent mitigating factor in sentencing. Additionally, the court held that the trial judge had failed to apply the principles outlined in R v Ellis and R v Fernando, which relate to voluntary disclosures and the potential for rehabilitation. The court concluded that a greater reduction in the sentence was warranted, taking into account these factors. Consequently, the appeal against both the sentence and its severity was upheld, and the appellant was re-sentenced.

Orders