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Newman v R

Newman v R

Case [2018] NSWCCA 208 28 September 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Newman v R [2018] NSWCCA 208
Hearing dates: 7 March 2018
Date of orders: 28 September 2018
Decision date: 28 September 2018
Before: Payne JA; Johnson J; Campbell J
Decision:
(1) Leave to appeal against sentence granted;
(2) Appeal dismissed.
Catchwords: CRIME – appeal against sentence – possession of child abuse material – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3) – mitigating factors – remorse – whether denial of procedural fairness – prospects of rehabilitation – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 91H
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 11
Family Law Act 1975 (Cth), s 65AA
Migration Act 1958 (Cth)
Cases Cited: Chong v R [2017] NSWCCA 185
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fitzgerald v R [2015] NSWCCA 266
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Medcalf v R [2016] NSWCCA 209
Obeid v R [2017] NSWCCA 221
R v Booth [2009] NSWCCA 89
R v De Leeuw [2015] NSWCCA 183
R v Johnston [2005] NSWCCA 80
R v Kristensen [2018] NSWCCA 189
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Pham [2005] NSWCCA 94
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
Singh v R [2018] NSWCCA 60
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Mark Newman (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
S J Tovey (Applicant)
E Balodis (Respondent)
Solicitors:
Fayman Lawyers (Applicant)
Solicitor for Public Prosecution (Respondent)

File Number(s): 2016/00043487
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

11 May 2017

Before:

Colefax SC DCJ

File Number(s):

2016/00043487

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Newman pleaded guilty in the Local Court to seven counts of possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), and two drug offences contrary to ss 10(1) and 11(1) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced in the District Court by Colefax SC DCJ to a total period of imprisonment of 3 years and 4 months, with a non-parole period of 2 years for the counts of possession of child…

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 Newman v R

Details

AGLC: Newman v R [2018] NSWCCA 208
Case: [2018] NSWCCA 208
Decision Date: 28 September 2018

CaseChat Overview and Summary

The appeal heard in Newman v R involved the appellant, who had been convicted of possession of child abuse material and sentenced under the Crimes (Sentencing Procedure) Act 1999 (NSW). The respondent, the Crown, did not oppose the appeal against the sentence, but argued that it was not manifestly excessive. The appeal was heard by the New South Wales Court of Criminal Appeal, which needed to determine the appropriate sentence for the appellant's conviction.

The central legal issues before the court were whether the sentence imposed was manifestly excessive and whether the court at first instance had denied the appellant procedural fairness by failing to give adequate weight to mitigating factors, including the appellant's remorse and prospects of rehabilitation. The court also needed to consider the proper application of the statutory sentencing framework, particularly section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), in light of the mitigating factors presented.

The court found that the sentence imposed was not manifestly excessive, despite acknowledging the gravity of the offence. The court held that the primary judge had adequately considered the mitigating factors, including the appellant's remorse and prospects of rehabilitation, and had appropriately balanced these against the seriousness of the offence. The court rejected the argument that the primary judge had denied the appellant procedural fairness, concluding that the sentence reflected a just outcome in the circumstances. The appeal was therefore dismissed, and the original sentence upheld.

The final orders of the court confirmed the dismissal of the appeal and the maintenance of the sentence imposed by the primary judge. The court's decision underscored the importance of considering both the severity of the offence and the individual circumstances of the offender in the sentencing process.

Orders