R v MA

Case [2023] NSWDC 567 15 December 2023

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v MA [2023] NSWDC 567
Hearing dates: 15 – 16, 22 – 26, 29 – 31 May 2023, 1 – 2, 5 – 9, 13 – 16, 19 – 23, 26 – 30 June 2023, 3 – 7, 10 – 14, 17 – 21, 24 – 28, 31 July 2023, 1 – 4, 7 – 11, 14 – 15 August 2023, 5 December 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Criminal
Before: J Smith SC DCJ
Decision:
See [73]

Catchwords:
CRIME – s 43A(2) of the Crimes Act 1900 (NSW) – failure to provide necessities of life – alternative charge to manslaughter – guilty verdicts following trial – high level of objective seriousness
SENTENCING – citizenship and migration – visa – detention – relevance of potential impact on sentence of decision on migration status – whether immigration detention amounts to punishment – immigration detention as quasi-custody – lack of remorse
Legislation Cited:
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)

Cases Cited:
Afful v R [2021] NSWCCA 111
Alexander v The Minister for Home Affairs (2022) 96 ALJR 560
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562
ARJ17 v Minister of Immigration and Border Protection [2018] FCAFC 98
Cheung v R (2001) 209 CLR 1
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
DG v R (No 1) [2023] NSWCCA 320
Hatahet v The King [2023] NSWCCA 305
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476
R v Isaacs (1997) 41 NSWLR 374
R v Latumetan and Murwanto [2003] NSWCCA 70
R v Pham [2005] NSWCCA 94
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 299 A Crim R 391
SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 447; 369 FLR 167

Texts Cited:
NA

Category: Principal judgment
Parties: Director of Public Prosecutions NSW (Crown)
MA (Offender)
Representation:
Counsel:
T Abdulhak (Crown Prosecutor)
Greg James AM KC (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Elite Legal Group (Offender)

File Number(s): 2019/00057100
Publication restriction: Publication of the name and any information or material that may lead to the identification of the victim is prohibited

Judgment

The offender was tried before me and a jury from 22 May 2023 to 14 August 2023 on an indictment containing three counts. Each count related to the offender’s stepson, (AF).
Counts 1 and 3 were both offences contrary to section 43A(2) of the Crimes Act 1900 (NSW), however, each were of a slightly different nature. Count 1 was that the accused, being a person having parental responsibility for AF, recklessly and without reasonable excuse, failed to provide him with the necessities of life, and the result of that failure caused a danger of

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 MA

Details

AGLC: R v MA [2023] NSWDC 567
Case: [2023] NSWDC 567
Decision Date: 15 December 2023

CaseChat Overview and Summary

The case involved a defendant charged with the failure to provide necessities of life under section 43A(2) of the Crimes Act 1900 (NSW), an offence carrying an alternative charge of manslaughter. The defendant's trial resulted in guilty verdicts on both charges. The court was tasked with determining the appropriate sentence, with a focus on the high level of objective seriousness of the offence.

The legal issues before the court included whether the potential impact of a decision on the defendant's migration status should be considered in sentencing, and if immigration detention could be considered a form of punishment or quasi-custody. Additionally, the court had to assess the defendant's level of remorse, which was deemed to be lacking. The court had to balance these factors against the statutory provisions and common law principles governing sentencing in such cases.

In its reasoning, the court concluded that the potential impact on the defendant's migration status was a relevant factor to consider, but not determinative, in sentencing. The court held that immigration detention could be considered quasi-custody, which could be a mitigating factor. However, the lack of remorse exhibited by the defendant was a significant aggravating factor. The court ultimately determined that the objective seriousness of the offence warranted a custodial sentence, and imposed imprisonment terms on both charges, to be served concurrently.

Orders

Orders of the court

See [73]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v MA [2023] NSWDC 567

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Hatahet v The King
[2023] NSWCCA 305 Para 3

…Two more of the offender’s arguments require consideration. First, he relied on the recent decision of Hatahet v The King [2023] NSWCCA 305. The question of principle in that case was whether either the terms of section 19ALB of the Crimes Act 1914 (Cth), or the established practices of the Commonwealth Attorney in…
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] HCA 37 Para 7

…ateb v Godwin [2004] HCA 37; 219 CLR 562 (“ Al-Kateb ”). Most recently, in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“ NZYQ ”), the Court reconsidered and overruled that aspect of the decision in Al-Kateb .…
DG v R (No 1)
[2023] NSWCCA 320 Para 4

…her than imprisonment was available. For that reason, it was unnecessary for me to hear the parties about the impact of the decision in DG v R (No 1) [2023] NSWCCA 320 on the offender’s submissions.…
Stanley v DPP (NSW)
[2023] HCA 3 Para 2

…otherwise argue that it was invalid, leaving the application for a visa unresolved: see, for example, Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 299 A Crim R 391 at [15].…
SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3)
[2022] FedCFamC2G 447 Para 13

…tion and Border Protection [2018] FCAFC 98; see also SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 447; 369 FLR 167. Those cases reveal that the relative liberties maintained in the immigration detention facilities are jealously guarded by the courts i…
Alexander v Minister for Home Affairs
[2022] HCA 19 Para 4

…if administratively inflicted is unconstitutional). In support of that proposition Mr James AM KC relied on Alexander v The Minister for Home Affairs (2022) 96 ALJR 560 (“ Alexander ”). Thus, he argued, such detention is as much relevant as any other extra curial punishment.…
Afful v R
[2021] NSWCCA 111 Para 1

…establishing that several authoritative statements were made obiter dicta [ R v Pham [2005] NSWCCA 94] or were otherwise not binding [ Afful v R [2021] NSWCCA 111] he did not address the cases which were relied on by those cases. It suffices to mention only one: R v Latumetan and Murwanto [2003] NSWCCA 70. That was…
ARJ17 v Minister for Immigration and Border Protection
[2018] FCAFC 98 Para 13

…le phones was unilaterally changed by the executive, although that attempt was short lived: see ARJ17 v Minister of Immigration and Border Protection [2018] FCAFC 98; see also SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 447; 369 FLR 167. Those…
R v Pham
[2005] NSWCCA 94 Para 1

…sentencing process. Although Mr James AM KC spent some time establishing that several authoritative statements were made obiter dicta [ R v Pham [2005] NSWCCA 94] or were otherwise not binding [ Afful v R [2021] NSWCCA 111] he did not address the cases which were relied on by those cases. It suffices to mention on…
Al-Kateb v Godwin
[2004] HCA 37 Para 7

…id in Lim , the High Court had held that the power to detain effectively allowed for unlimited and potentially permanent detention: Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (“ Al-Kateb ”). Most recently, in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“ NZYQ ”), the C…
R v Latumetan and Murwanto
[2003] NSWCCA 70 Para 1

…[2021] NSWCCA 111] he did not address the cases which were relied on by those cases. It suffices to mention only one: R v Latumetan and Murwanto [2003] NSWCCA 70. That was a Crown appeal against a sentence imposed in this Court. Studdert J, with whom Shaw J agreed, found that this Court had erred by taking into ac…
Plaintiff S157/2002 v Commonwealth
[2003] HCA 2 Para 1

…s jurisdiction is limited to determining whether the decision of the IAA was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76].…
Cheung v The Queen
[2001] HCA 67 Para 1

…t with the jury’s verdict; and second, that findings of fact made against the offender must be arrived at beyond reasonable doubt: see Cheung v R (2001) 209 CLR 1 at [14] citing R v Isaacs (1997) 41 NSWLR 374. The Court in Isaacs also explained that there is no general requirement that a sentencing judge must sente…
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
[1992] HCA 64 Para 5

…t and punishment of criminal guilt is an exclusively judicial function: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (“ Chu Kheng Lim ”). For that reason, it is beyond the constitutional power of the government to enact a law that permits the executive to judge and…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 2)
Crimes Act 1914 (Cth)
1 mention
Migration Act 1958 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	R v MA [2023] NSWDC 567
Hearing dates:	15 – 16, 22 – 26, 29 – 31 May 2023, 1 – 2, 5 – 9, 13 – 16, 19 – 23, 26 – 30 June 2023, 3 – 7, 10 – 14, 17 – 21, 24 – 28, 31 July 2023, 1 – 4, 7 – 11, 14 – 15 August 2023, 5 December 2023
Date of orders:	15 December 2023
Decision date:	15 December 2023
Jurisdiction:	Criminal
Before:	J Smith SC DCJ
Decision:	See [73]
Catchwords:	CRIME – s 43A(2) of the Crimes Act 1900 (NSW) – failure to provide necessities of life – alternative charge to manslaughter – guilty verdicts following trial – high level of objective seriousness SENTENCING – citizenship and migration – visa – detention – relevance of potential impact on sentence of decision on migration status – whether immigration detention amounts to punishment – immigration detention as quasi-custody – lack of remorse
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Migration Act 1958 (Cth)
Cases Cited:	Afful v R [2021] NSWCCA 111 Alexander v The Minister for Home Affairs (2022) 96 ALJR 560 Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 ARJ17 v Minister of Immigration and Border Protection [2018] FCAFC 98 Cheung v R (2001) 209 CLR 1 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 DG v R (No 1) [2023] NSWCCA 320 Hatahet v The King [2023] NSWCCA 305 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 R v Isaacs (1997) 41 NSWLR 374 R v Latumetan and Murwanto [2003] NSWCCA 70 R v Pham [2005] NSWCCA 94 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 299 A Crim R 391 SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 447; 369 FLR 167
Texts Cited:	NA
Category:	Principal judgment
Parties:	Director of Public Prosecutions NSW (Crown) MA (Offender)
Representation:	Counsel: T Abdulhak (Crown Prosecutor) Greg James AM KC (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Elite Legal Group (Offender)
File Number(s):	2019/00057100
Publication restriction:	Publication of the name and any information or material that may lead to the identification of the victim is prohibited