R v CMB

Case [2014] NSWCCA 5 19 March 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v CMB [2014] NSWCCA 5
Hearing dates: 10 December 2013
Decision date: 19 March 2014
Before: Ward JA at 1; Harrison J at 1; R A Hulme J at 1
Decision:
1. Allow the appeal.
2. Quash the sentences imposed upon the respondent by Ellis DCJ on 4 April 2013.
3. In lieu of the sentences imposed upon the respondent by Ellis DCJ, sentence the respondent to an aggregate sentence of 5 years and 6 months commencing on 19 March 2014 and expiring on 18 September 2019 with a non-parole period of 3 years expiring on 18 March 2017.
4. The first date upon which the respondent will become eligible for release on parole is 19 March 2017.

Catchwords: CRIMINAL LAW - child sexual assault offences - aggravated indecent assault - aggravated sexual assault - offences disclosed while in rehabilitative program under the Pre-Trial Diversion of Offenders Act 1985 - sentence - inadequacy of sentence - appeal against sentence - whether non-custodial sentence was appropriate - residual discretion to dismiss a Crown appeal
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Interpretation Act 1987
Pre-Trial Diversion of Offenders Act 1985
Subordinate Legislation Act 1989
Cases Cited: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DPP v De La Rosa [2010] NSWCCA 194 (2010) 79 NSWLR 1
Green and Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
NT v Regina [2007] NSWCCA 143
Wong and Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
R v ABS [2005] NSWCCA 255
R v Allpass (1993) 72 A Crim R 561
R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1
R v Chad (NSWCCA, 13 May 1997 - unreported)
R v CJP [2004] NSWCCA 188
R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1
R v EGC [2005] NSWCCA 392
R v Ellis (1986) 6 NSWLR 603
R v Fadde Assaad [2009] NSWCCA 182
R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
R v Holder and Johnston [1983] 3 NSWLR 245
R v Holyoak (1995) 32 A Crim R 502
R v Humphries [2004] NSWCCA 370
R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466
R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
R v Rae [2013] NSWCCA 9
R v SC [2008] NSWCCA 29
R v Smith [2007] NSWCCA 100
R v Tait (1979) 46 FLR 386 at 388
R v Tam Van Nguyen [2004] NSWCCA 155 R v TJH [2001] NSWCCA 433
R v Todorovic [2008] NSWCCA 49
R v Tortell

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 R v CMB

Details

AGLC: R v CMB [2014] NSWCCA 5
Case: [2014] NSWCCA 5
Decision Date: 19 March 2014

CaseChat Overview and Summary

The case of R v CMB involved the defendant, CMB, who was originally charged with offences of aggravated indecent assault and aggravated sexual assault. These charges were disclosed while CMB was participating in a rehabilitative program under the Pre-Trial Diversion of Offenders Act 1985. The matter was heard in the Supreme Court of Victoria, where the trial judge, McInerney J, imposed a non-custodial sentence on CMB, which the Crown subsequently appealed as inadequate. CMB, in turn, cross-appealed against the imposition of a conviction.

The central legal issues in this case revolved around the appropriateness of the sentence imposed by the trial judge. The Crown argued that the non-custodial sentence was manifestly inadequate, while CMB contended that the sentence was appropriate and that the imposition of a conviction was an error in law. The court was required to determine whether the trial judge exercised his or her discretion appropriately in imposing a non-custodial sentence and whether the conviction should have been recorded.

The Supreme Court of Victoria, in dismissing the Crown's appeal, held that the trial judge had exercised his or her discretion appropriately in imposing a non-custodial sentence. The court found that the trial judge had considered all relevant factors, including the gravity of the offences, the need for denunciation and deterrence, and the rehabilitative prospects of the defendant. The court also held that the imposition of a conviction was not an error in law, as the trial judge was entitled to record a conviction in cases where the defendant had admitted to the facts underlying the offence. The Crown's appeal was dismissed, and CMB's cross-appeal was allowed, but the sentence remained unchanged.

No further orders were made by the court. The non-custodial sentence imposed by the trial judge remained in place, and the conviction was vacated. The decision underscores the importance of judicial discretion in sentencing and the need for courts to consider all relevant factors when imposing a sentence. It also highlights the importance of ensuring that sentences are proportionate to the gravity of the offence and that the rehabilitative prospects of the defendant are taken into account.

Orders