R v Maher - [2000] NSWCCA 147

CITATION: R v MAHER [2000] NSWCCA 147

FILE NUMBER(S): CCA 60138 of 1999

HEARING DATE(S): 12 April 2000

JUDGMENT DATE:
12 April 2000

PARTIES :

Regina
Craig Maher

JUDGMENT OF: Hulme J at 1; Dowd J at 23

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :
97/21/0337; 98/21/0127

LOWER COURT JUDICIAL
OFFICER : Karpin DCJ

COUNSEL : Crown: PG Berman
Appellant: TJ Golding

SOLICITORS: Crown: SE O'Connor
Appellant: TA Murphy

DECISION: Leave to appeal granted; Appeal dismissed

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IN THE COURT OF
CRIMINAL APPEAL
No: 60138/99

HULME J
DOWD J

Wednesday, 12 April 2000

REGINA -v-Craig MAHER

JUDGMENT

1    HULME J: On 26 March 1999 Craig Jonathan Maher was sentenced to a fixed term of three years penal servitude commencing on 12 January 1998 in respect of an offence under section 61I of the Crimes Act committed on 22 October 1995 and a cumulative sentence consisting of a minimum term of five years penal servitude commencing on 11 January 2001 and an additional term of three years in respect of an offence against 61J of the Crimes Act committed on 1 January 1998.
2 An offence under section 61I renders the offender liable to a maximum penalty of fourteen years penal servitude. An offence under section 61J renders an offender liable to a maximum term of penal servitude - I use the expression, current at the time of this offence - of twenty years.
3    The circumstances of the first offence were as follows. The applicant lived in a caravan park. The complainant also lived there. On the evening of 21 October a window immediately adjacent to the entrance door of the complainant's caravan was smashed. In the early hours of the next morning the applicant unlocked the door and entered the caravan. The complainant who was lying on her side in bed said, can you leave, I don't want you here. The applicant forced her onto her back removed her track suit pants and underpants, and after something of a struggle forced his penis into her vagina and continued intercourse until he ejaculated. Shortly afterwards he got off and left the caravan. When interviewed by the police on 14 October 1995, he denied all knowledge of the offence and maintained he was not in the vicinity at the time.
4    The second offence occurred on the evening of 11 January 1998. The victim of this offence also at that time was living in a caravan in the caravan park. Her de facto husband was away. The applicant knocked on the victim's door. She opened the door to enquire what was wanted, the applicant pushed her backwards so that she fell striking her head on a refrigerator. The applicant entered the van and by pulling her legs out forced her to lie flat on the floor. She tried to stand up. The applicant punched her in the left eye causing her to fall again, striking her head on the refrigerator. The applicant pulled his own…

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 Maher

Details

AGLC: R v Maher [2000] NSWCCA 147
Case: [2000] NSWCCA 147
Decision Date: 12 April 2000

CaseChat Overview and Summary

In the Court of Criminal Appeal, Craig Jonathan Maher appealed against the sentences imposed by the District Court for two offences under the Crimes Act. The first offence, committed on 22 October 1995, involved sexual assault on a woman living in a caravan park. The second offence, committed on 1 January 1998, involved a similar assault on another woman in the same caravan park. The District Court sentenced Maher to a fixed term of three years for the first offence and a cumulative sentence consisting of a minimum term of five years for the second offence, commencing on 11 January 2001. Maher argued that the sentences were excessive on several grounds, including the failure to adequately consider his guilty plea, the likelihood of re-offending, and the relevance of his intellectual capacity in relation to general deterrence.

The Court of Criminal Appeal considered each of these arguments in turn. Regarding the guilty plea, while the District Court judge's reasons could have been more explicit, the Court found no evidence that the plea was not properly considered. The Court also found that the District Court judge had adequately considered the likelihood of re-offending, despite not explicitly discussing a specific recidivism scale. Regarding the appellant's intellectual capacity, the Court held that Maher's borderline intellectual functioning did not preclude the consideration of general deterrence, particularly given the nature of his second offence while on bail for the first.

Finally, the Court addressed the overall severity of the sentences. It found that the cumulative sentence of eight years was not excessive for the nature of the offences, and the fixed term of three years for the first offence, while lenient, was justified by the principles of totality and proportionality. The Court concluded that the District Court judge had exercised her discretion appropriately and dismissed the appeal against sentence. The Court did, however, grant leave to appeal against the sentence, considering the significant custodial terms imposed.

Orders