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R v MacBain

R v MacBain

Case [2005] NSWCCA 358 20 October 2005

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CITATION:
REGINA v. MACBAIN [2005] NSWCCA 358

HEARING DATE(S): Thursday 20 October 2005

JUDGMENT DATE:

20 October 2005

JUDGMENT OF:
Spigelman CJ at 50; McClellan CJ at CL at 51; Hall J at 1

DECISION:
1. Leave to appeal be granted; 2. The appeal is allowed in relation to the commencement date of each of the sentences imposed in respect of count 1 (committed between 21 and 22 June 2001) and count 2 (committed on 16 April 2004), the appeal otherwise be dismissed; 3. The appellant is accordingly to be sentenced to concurrent terms of imprisonment as follows: Count 1 - to a term of imprisonment for a period of two years and six months commencing on 8 May 2004 with a non-parole period of one year to expire on 7 May 2005; Count 2 - to a term of imprisonment of five years and three months commencing on 8 May 2004 with a non-parole period of three years to expire on 7 May 2007. The appellant, accordingly, will be eligible for release on parole on 7 May 2007.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Kitchener [2003] NSWCCA 134
Kaiva (NSWCCA, unreported 9.11.98)
Walker [2004] NSWCCA 230
McHugh (1985) 1 NSWLR 588
Deeble (NSWCCA, unreported 19.9.91)
Newman & Simpson (2004) 145 A. Crim. R. 361
Ponfield (1999) 48 NSWLR 327
Veen (No. 2) (1987-88) 164 CLR 465
DPP v. Ottewell (1970) AC 642
Johnstone [2005] NSWSC 80
Gallagher (1981) 23 NSWLR 220
Markarian (2005) 79 ALJR 1048
H [2005] NSWCCA 282
Saleib [2005] NSWCCA 85
Thomson & Houlton (2000) 49 NSWLR 383

PARTIES:
REGINA v.
Mark Raymond MACBAIN

FILE NUMBER(S):
CCA 2005/1460

COUNSEL:
Crown: D. Arnott
App: H. Dhanji

SOLICITORS:
Crown: S. Kavanagh
App: S. O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/1384

LOWER COURT JUDICIAL OFFICER:
McLoughlin, DCJ.

2005/1460

SPIGELMAN, CJ.
MCCLELLAN, CJ. AT CL.
HALL, J.
THURSDAY 20 OCTOBER 2005

REGINA v. MARK RAYMOND MACBAIN

Judgment

1 HALL, J: On 9 August 2005, the applicant, Mark Raymond MacBain, gave notice of application for leave to appeal in respect of the sentence imposed upon him by his Honour Judge McLoughlin, SC. in the District Court sitting at Parramatta on 4 February 2005.

2 On 11 November 2004, the applicant entered pleas of guilty in the Central Local Court in relation to two charges of break, enter and steal contrary to s.112(1) of the Crimes Act 1900 (NSW). The offences under that section each carry a maximum penalty of 14 years imprisonment.

3 There were a further seven charges which the applicant requested be taken into account on a Form 1 in respect of the offence committed on 16 April 2004.

4 Particulars of counts one and two are as follows:-

Break, enter and commit serious indictable offence (larceny) between 21 June 2001 and 22 June 2001, s.112(1) Crimes Act 1900.

Maximum penalty: 14 years imprisonment

Break, enter…

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 MacBain

Details

AGLC: R v MacBain [2005] NSWCCA 358
Case: [2005] NSWCCA 358
Decision Date: 20 October 2005

CaseChat Overview and Summary

The case of Regina v. Mark Raymond MacBain revolves around the sentencing of the appellant for two counts of break, enter, and steal under the Crimes Act 1900 (NSW). MacBain appealed against the sentences imposed by the District Court, claiming that the sentences were excessive and that they contained an aspect of double punishment due to improper backdating. The Court of Criminal Appeal heard the appeal on 20 October 2005, with Spigelman CJ, McClellan CJ at CL, and Hall J delivering the judgment on the same day. The primary legal issues in the case were whether the sentences contained an aspect of double punishment due to improper backdating and whether the sentences imposed were manifestly excessive. The Court found merit in the first ground of appeal, agreeing that the sentences should have been backdated to the date of the appellant's arrest, 8 May 2004, instead of 15 July 2004. The Court found no merit in the second ground of appeal, concluding that the sentences imposed were not manifestly excessive and were appropriate considering the appellant's criminal history, the nature of the offences, and the objective seriousness of the crimes. The Court granted leave to appeal and allowed the appeal in relation to the commencement date of the sentences but dismissed the appeal otherwise. The appellant was sentenced to concurrent terms of imprisonment for Count 1, two years and six months, commencing on 8 May 2004 with a non-parole period of one year, and for Count 2, five years and three months, also commencing on 8 May 2004 with a non-parole period of three years.

Orders