R v M.F

Case [2014] NSWDC 136 18 August 2014

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District Court

New South Wales

Medium Neutral Citation: R v M.F. [2014] NSWDC 136
Hearing dates: 24 July 2014, 18 August 2014.
Decision date: 18 August 2014
Before: Judge A Haesler SC
Decision: Taking into account a finding of special circumstances, convicted and sentenced to a non parole period of 3 years, to commence on 16 August 2014 and expire on 15 August 2017. Eligible for consideration for release to parole on 15 August 2017 to serve the balance of term of 3 years, to commence on 16 August 2017 and expire on 15 August 2020. Total sentence is a term of imprisonment of 6 years.
Catchwords: Sentence, Child offender, Duress, Assistance.
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Cases Cited: Blackman & Walters [2001] NSWCCA 121
R v Borkowski [2009] NSWCCA 102
Bugmy v The Queen (1990) 169 CLR 525
Bus and S (unreported CCA NSW 3/11/1995)
R v Einfeld [2009] NSWSC 119
Regina v Elliot and Blessington [2006] NSWCCA 305
R v Engert (1995) 84 ALR 67
R v GDP (1991) 53 A Crim R 112
R v Hearne (2001) 124 A Crim R 451
R v Hopkins [2004] NSWCCA 105
JM v R [2012] NSWCCA 83
R v KS [2005] NSWCCA 87
KT v R [2008] NSWCCA 51
Kuti v R [2012] NSWCCA 43
R v MA (2007) 145 A Crim R 434
Martin v R [2013] NSWCCA 24
R v Pham & Ly (1991) 55 A Crim R 128
Roper v Simmons (2005) 125 S Ct 1183
Ryan v The Queen (2001) 206 CLR 267
Slade v The Queen [2005] NZ CA 19
R v Standen [2011] NSWSC 1422
R v Sukkar [2006] NSWCCA 92
R v Suteski (2002) 52 NSWLR 182
R v Thomson (2000) 49 NSWLR 383
Tiknius v R [2011] NSWCCA 215
Veen v The Queen (No.2) (1988) 164 CLR 465
R v Webster, unreported CCA NSW 15 July 1991
Weininger v The Queen (2003) 212 CLR 629
R v Windle [2012] NSWCCA 222
Yardley v Betts (1979) 22 SASR 108
York v The Queen (2005) 205 CLR 426
R v Z (2005) AC 467
Texts Cited: Does Imprisonment Deter? A Review of the evidence. D Ritchie, for the Sentencing Advisory Council Victoria, April 2011
Category: Principal judgment
Parties: M.F. (Offender)
Crown (Director of Public Prosecutions)
Representation: Mr P Hogan (for the Offender)
Mr T McCarthy (DPP)
Ms Mona El Baba Oxford lawyers. (for the Offender)
Ms K Naividi (DPP)

File Number(s): 2012/223933
Publication restriction: Non publication of offender's name, co-offender's name, name of victim.

Judgment

The use of pseudonyms

This sentencing decision relates to a young man who was a child at the time of his offending. His name is not to be published: s15A Children (Criminal Proceedings) Act 1987. He will be referred to as "MF".

I also refer to another man as "M". He is to be tried later this year. Care must be taken with any publication of these reasons to ensure he is not prejudiced…

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 M.F

Details

AGLC: R v M.F [2014] NSWDC 136
Case: [2014] NSWDC 136
Decision Date: 18 August 2014

CaseChat Overview and Summary

In the case of R v M.F, the defendant faced sentencing after being found guilty of various criminal charges. The dispute centered on the appropriate sentence for the defendant, taking into account mitigating factors such as their status as a child offender and claims of acting under duress. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining the appropriate sentence for M.F, considering the statutory requirements and the circumstances of the case. This involved assessing the gravity of the offence, the role of the defendant, and the presence of any mitigating factors. Notably, the court had to decide whether M.F's actions were influenced by duress and whether this warranted a reduction in sentence. Additionally, the court needed to balance the need for punishment with the rehabilitation of a young offender.

The court found that, while M.F had played a significant role in the commission of the crimes, there were special circumstances that warranted a reduced sentence. The court accepted that M.F had acted under duress, which influenced their decision to participate in the offences. The court also considered M.F's age and potential for rehabilitation. As a result, the court imposed a total sentence of imprisonment for six years, with a non-parole period of three years. The sentence was designed to reflect the seriousness of the crimes while also considering the mitigating factors present in the case.

The final orders of the court were that M.F would serve a total sentence of imprisonment for six years, with a non-parole period of three years, beginning on 16 August 2014 and ending on 15 August 2017. M.F would then be eligible for parole consideration on 15 August 2017, to serve the remaining three years of their sentence.

Orders

Orders of the court

Taking into account a finding of special circumstances, convicted and sentenced to a non parole period of 3 years, to commence on 16 August 2014 and expire on 15 August 2017. Eligible for consideration for release to parole on 15 August 2017 to serve the balance of term of 3 years, to commence on 16 August 2017 and expire on 15 August 2020. Total sentence is a term of imprisonment of 6 years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v M.F [2014] NSWDC 136

Most Recent Citation

R v Nydegger [2023] NSWDC 619

Cases citing this decision · 1 of 1 shown

R v Nydegger
[2023] NSWDC 619 Para 60

…pattern of sentencing judgments. Reference was made to Kilic v The Queen (2016) 259 CLR 256; R v Fouani [2018] NSWCCA 230; and my matter of R v M.F. [2014] NSWDC 136, but they were not matters involving s 47. Mention was made of a s 47 matter in Browning v R [2015] NSWCCA 147.…

View all 1 citing cases →

Cases cited in this decision · 24 of 24 shown

Martin v R
[2013] NSWCCA 24 Para 1

…se appropriate given what was done to Ms K. Gaol has significant adverse consequences to all especially the young and the wider community: Martin v R [2013] NSWCCA 24 at [44] and Blackman and Walters. The lived experience of prison should not be underestimated. Some of the possible consequences on MF of gaol, as op…
R v Windle
[2012] NSWCCA 222 Para 1

…e offender will suffer punishment and that particular offences will merit severe punishment": Ryan v The Queen (2001) 206 CLR 267 at [46]; R v Windle [2012] NSWCCA 222 at [42]. A court must do what it can to vindicate the dignity of a victim of violence and by the sentence imposed attempt to dissuade others from act…
JM v R
[2012] NSWCCA 83 Para 1

…ective function of the court, particularly where the offending is objectively very serious. Justice Simpson recently discussed these themes in JM v R [2012] NSWCCA 83.…
Kuti v R
[2012] NSWCCA 43 Para 1

…offender, are also relevant when I assess his prospects for rehabilitation: See Tiknius v R [2011] NSWCCA 215; R v Z (2005) AC 467 at [22]; Kuti v R [2012] NSWCCA 43.…
R v Standen
[2011] NSWSC 1422 Para 1

…ame opportunities as those in other forms of protection. Things are worse for those in special confinement: R v Einfeld [2009] NSWSC 119; R v Standen [2011] NSWSC 1422.…
Tiknius v R
[2011] NSWCCA 215 Para 1

…ive side when assessing the true moral culpability of the offender, are also relevant when I assess his prospects for rehabilitation: See Tiknius v R [2011] NSWCCA 215; R v Z (2005) AC 467 at [22]; Kuti v R [2012] NSWCCA 43.…
R v Robert Borkowski
[2009] NSWCCA 102 Para 1

…ction of only 10% would be given for the utilitarian value of the plea when entered at this late stage: R v Thomson (2000) 49 NSWLR 38; R v Borkowski [2009] NSWCCA 102 at [32]. However a judge does have some residual discretion in such matters and the Crown now concede that a 15% reduction would be appropriate. I ag…
R v Einfeld
[2009] NSWSC 119 Para 1

…hers and cannot be given the same opportunities as those in other forms of protection. Things are worse for those in special confinement: R v Einfeld [2009] NSWSC 119; R v Standen [2011] NSWSC 1422.…
KT v R
[2008] NSWCCA 51 Para 1

…eterrence may be given less weight in favour of individual treatment aimed at rehabilitation: R v GDP (1991) 53 A Crim R 112 and more recently KT v R [2008] NSWCCA 51.…
R v E
[2006] NSWCCA 305

…NSWCCA 102 Bugmy v The Queen (1990) 169 CLR 525 Bus and S (unreported CCA NSW 3/11/1995) R v Einfeld [2009] NSWSC 119 Regina v Elliot and Blessington [2006] NSWCCA 305 R v Engert (1995) 84 ALR 67 R v GDP (1991) 53 A Crim R 112 R v Hearne (2001) 124 A Crim R 451 R v Hopkins [2004] NSWCCA 105 JM v R [2012] NSWCCA 83 R…
R v Sukkar
[2006] NSWCCA 92 Para 1

…ure that those in Special Management Area Protection are not deprived of work opportunities and programmes to aid in their rehabilitation: R v Sukkar [2006] NSWCCA 92. I have heard evidence in other matters that prisoners in Limited or Non-Association protection are however kept in their cells more often than other…
York v The Queen
[2005] HCA 60 Para 1

…week of the type of taunts that are regularly made to protected prisoners from those in the "main". Sometimes there is evidence of prior threats: see York v The Queen (2005) 205 CLR 426. Sometimes it is not available as Corrective Services try to ensure that those in Special Management Area Protection are not deprived of…
R v KS
[2005] NSWCCA 87 Para 1

…torious that known informers, for the simple reason they are so known, are at risk of attack. It is possible other prisoners can make threats: R v KS [2005] NSWCCA 87. I heard evidence only last week of the type of taunts that are regularly made to protected prisoners from those in the "main". Sometimes there is ev…
R v Hopkins
[2004] NSWCCA 105 Para 1

…eininger v The Queen (2003) 212 CLR 629. A judge is not required to average out these considerations, sometimes one can be determinative: R v Hopkins [2004] NSWCCA 105 at [22].…
Weininger v The Queen
[2003] HCA 14 Para 1

…complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time ...": Weininger v The Queen (2003) 212 CLR 629. A judge is not required to average out these considerations, sometimes one can be determinative: R v Hopkins [2004] NSWCCA 105 at [22].…
R v Blackman and Walters
[2001] NSWCCA 121 Para 1

…Similar remarks were made in Blackman & Walters [2001] NSWCCA 121 and Yardley v Betts (1979) 22 SASR 108 at 112-113. They are supported by the conclusion of empirical research detailed recently in Does Imprisonment Deter? A Review of the evidence. D Ritchie, for the Sentencing Advisory Council Victoria, April 2011.…
Ryan v The Queen
[2001] HCA 21 Para 1

…n of the "community expectation that the offender will suffer punishment and that particular offences will merit severe punishment": Ryan v The Queen (2001) 206 CLR 267 at [46]; R v Windle [2012] NSWCCA 222 at [42]. A court must do what it can to vindicate the dignity of a victim of violence and by the sentence impos…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 1

…Generally, a reduction of only 10% would be given for the utilitarian value of the plea when entered at this late stage: R v Thomson (2000) 49 NSWLR 38; R v Borkowski [2009] NSWCCA 102 at [32]. However a judge does have some residual discretion in such matters and the Crown now concede that a 15% reduction would be a…
R v Thomson; R v Houlton
[2000] NSWCCA 383

…) 206 CLR 267 Slade v The Queen [2005] NZ CA 19 R v Standen [2011] NSWSC 1422 R v Sukkar [2006] NSWCCA 92 R v Suteski (2002) 52 NSWLR 182 R v Thomson (2000) 49 NSWLR 383 Tiknius v R [2011] NSWCCA 215 Veen v The Queen (No.2) (1988) 164 CLR 465 R v Webster, unreported CCA NSW 15 July 1991 Weininger v The Queen (2003) 21…
Bugmy v The Queen
[1990] HCA 18 Para 1

…erefore requires a significant variation in the otherwise appropriate non-parole period: R v MA (2007) 145 A Crim R 434 at [33] and Bugmy v The Queen (1990) 169 CLR 525 at [20].…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…considered in isolation. "They are guideposts to the appropriate sentence but sometimes they point in different directions": Veen v The Queen (No.2) (1988) 164 CLR 465 at [476]; R v Engert (1995) 84 ALR 67 at [68].…
(2005) AC 467
(2005) AC 467 Para 1

…he true moral culpability of the offender, are also relevant when I assess his prospects for rehabilitation: See Tiknius v R [2011] NSWCCA 215; R v Z (2005) AC 467 at [22]; Kuti v R [2012] NSWCCA 43.…
Roper v Simmons
(2005) 543 US 1 Para 1

…The United States Supreme Court expressed similar sentiments when ruling the death penalty was not allowed for children: Roper v Simmons (2005) 125 S Ct 1183…
Yardley v Betts
(1979) 22 SASR 108 Para 1

…Similar remarks were made in Blackman & Walters [2001] NSWCCA 121 and Yardley v Betts (1979) 22 SASR 108 at 112-113. They are supported by the conclusion of empirical research detailed recently in Does Imprisonment Deter? A Review of the evidence. D Ritchie, for the Sentencing Advisory Council Victoria, April 2011.…

Legislation cited in this decision · 2

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v M.F. [2014] NSWDC 136
Hearing dates:	24 July 2014, 18 August 2014.
Decision date:	18 August 2014
Before:	Judge A Haesler SC
Decision:	Taking into account a finding of special circumstances, convicted and sentenced to a non parole period of 3 years, to commence on 16 August 2014 and expire on 15 August 2017. Eligible for consideration for release to parole on 15 August 2017 to serve the balance of term of 3 years, to commence on 16 August 2017 and expire on 15 August 2020. Total sentence is a term of imprisonment of 6 years.
Catchwords:	Sentence, Child offender, Duress, Assistance.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900
Cases Cited:	Blackman & Walters [2001] NSWCCA 121 R v Borkowski [2009] NSWCCA 102 Bugmy v The Queen (1990) 169 CLR 525 Bus and S (unreported CCA NSW 3/11/1995) R v Einfeld [2009] NSWSC 119 Regina v Elliot and Blessington [2006] NSWCCA 305 R v Engert (1995) 84 ALR 67 R v GDP (1991) 53 A Crim R 112 R v Hearne (2001) 124 A Crim R 451 R v Hopkins [2004] NSWCCA 105 JM v R [2012] NSWCCA 83 R v KS [2005] NSWCCA 87 KT v R [2008] NSWCCA 51 Kuti v R [2012] NSWCCA 43 R v MA (2007) 145 A Crim R 434 Martin v R [2013] NSWCCA 24 R v Pham & Ly (1991) 55 A Crim R 128 Roper v Simmons (2005) 125 S Ct 1183 Ryan v The Queen (2001) 206 CLR 267 Slade v The Queen [2005] NZ CA 19 R v Standen [2011] NSWSC 1422 R v Sukkar [2006] NSWCCA 92 R v Suteski (2002) 52 NSWLR 182 R v Thomson (2000) 49 NSWLR 383 Tiknius v R [2011] NSWCCA 215 Veen v The Queen (No.2) (1988) 164 CLR 465 R v Webster, unreported CCA NSW 15 July 1991 Weininger v The Queen (2003) 212 CLR 629 R v Windle [2012] NSWCCA 222 Yardley v Betts (1979) 22 SASR 108 York v The Queen (2005) 205 CLR 426 R v Z (2005) AC 467
Texts Cited:	Does Imprisonment Deter? A Review of the evidence. D Ritchie, for the Sentencing Advisory Council Victoria, April 2011
Category:	Principal judgment
Parties:	M.F. (Offender) Crown (Director of Public Prosecutions)
Representation:	Mr P Hogan (for the Offender) Mr T McCarthy (DPP) Ms Mona El Baba Oxford lawyers. (for the Offender) Ms K Naividi (DPP)
File Number(s):	2012/223933
Publication restriction:	Non publication of offender's name, co-offender's name, name of victim.