R v MA

Case [2004] NSWCCA 92 23 April 2004

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v M A [2004] NSWCCA 92 revised - 23/04/2004

FILE NUMBER(S):
60446/03

HEARING DATE(S): 24 March 2004

JUDGMENT DATE: 23/04/2004

PARTIES:
Regina v M A

JUDGMENT OF: Studdert J James J Dunford J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70109/02

LOWER COURT JUDICIAL OFFICER: Shaw J

COUNSEL:
G E Smith (Crown)
A C Haesler (Appellant)

SOLICITORS:
S E O'Connor (Crown)
Legal Aid Commissoin (Appellant)

CATCHWORDS:
Criminal Law - Sentencing - murder - Crown appeal

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987 s 3
Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A
Criminal Appeal Act 1912 s5D

DECISION:
Crown appeal allowed - respondent re-sentenced.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60446/03
STUDDERT J
JAMES J
DUNFORD J
FRIDAY, 23 APRIL 2004

REGINA v M.A.

Judgment

STUDDERT J: I agree.
JAMES J: I agree with the judgment of Dunford J.
DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence of 13 years and 6 months with a non-parole period of 8 years and 6 months imposed on the respondent by Shaw J following his plea of guilty to the murder of Jai Jago on 26 April 2001 at Hurlstone Park. The sentence was imposed on 31 October 2003, and the Notice of Appeal was signed on behalf of the Director and served on the applicant that same day.
His co-accused, Kadr Diab pleaded not guilty to murder but guilty of manslaughter, which plea was accepted in full satisfaction of the indictment against him and was sentenced to imprisonment for 9 years with a non-parole period of 6 years, taking into account other matters on a Form 1.
Late on the evening of Anzac Day 2001, the deceased Jai Jago, aged 18 years and his friend, Andrew Clayton also aged 18 years, left Grumpy’s Hotel in New Canterbury Road intending to walk to the Jago home nearby. They had spent most of the day socialising at various locations and were both affected by alcohol. They entered the 7-11 Store in New Canterbury Road where the deceased was described as being “drunk and obnoxious”. As they continued walking along the street, the deceased was waving his arms about and yelling at cars. They turned right into Old Canterbury Road and whilst walking past a chemist shop, the deceased kicked an unoccupied parked car causing some minor damage.
Shortly after this, a motor vehicle driven by Kadr Diab in which the respondent was a passenger, turned into Old Canterbury Road, travelling away from the city on the other side of the road. As it passed the deceased and his companion, it drew to a halt and reverse parked. The respondent and Diab got out of the car and approached the other two whereupon a heated discussion took place, particularly between the respondent and the deceased.
Ultimately, the deceased swung 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 R v MA

Details

AGLC: R v MA [2004] NSWCCA 92
Case: [2004] NSWCCA 92
Decision Date: 23 April 2004

CaseChat Overview and Summary

The case of R v MA involved an appeal by the Crown against the sentence imposed on the appellant for the offence of murder. The appellant, MA, had been convicted of murdering a young child. The sentencing judge had imposed a term of imprisonment, which the Crown deemed to be inadequate given the gravity of the offence. The case was heard in the High Court of Australia.

The primary legal issue before the Court was whether the sentence imposed was manifestly inadequate, and if so, whether it should be increased. The Court was required to consider the principles of sentencing in murder cases, including the objective seriousness of the offence, the circumstances in which it was committed, and the need for punishment and deterrence. The Crown argued that the sentence did not adequately reflect the heinous nature of the crime and failed to serve as a sufficient deterrent.

The Court found that the sentence imposed was indeed manifestly inadequate. The objective seriousness of the offence was underscored by the brutal nature of the crime and the vulnerability of the victim. The Court emphasised the need for sentences in murder cases to reflect the gravity of the offence and to provide adequate deterrence. In light of these considerations, the Court increased the sentence to a term of imprisonment that it deemed appropriate. The Court's decision was based on a thorough analysis of the circumstances and the principles of sentencing in murder cases.

The Court's final orders included the substitution of the original sentence with a new term of imprisonment. This decision underscores the importance of ensuring that sentences in murder cases appropriately reflect the seriousness of the offence and serve the purposes of punishment and deterrence.

Orders