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R v Mailes

R v Mailes

Case [2003] NSWSC 707 1 August 2003

Criminal Liability

Murder

Criminal Law

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Reported Decision:
142 A Crim R 353

New South Wales

Supreme Court

CITATION: R v Mailes [2003] NSWSC 707 revised - 21/10/2003

HEARING DATE(S): 24/3/03 - 22/4/03, 28/7/03

JUDGMENT DATE:
1 August 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Wood CJatCL at 1

DECISION: HIS HONOUR: 1. I determine that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence of murder, which the defendant has been found to have committed, I would have imposed a sentence of imprisonment; 2. I nominate a limiting term in respect of that offence of 25 years to commence from 28 March 1996, being the date from which the defendant has been held in custody; 3. In accordance with the requirements of section 24 of the Mental Health (Criminal Procedure) Act, I refer the defendant to the Mental Health Review Tribunal; 4. Pending notification of the determination of the Tribunal and also pending further order of the Court, I order that the defendant be detained in a Correctional Centre.

CATCHWORDS: CRIMINAL LAW - Special Hearing - Murder - Limiting Term.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999: sections 3A(c), 21A, 61(1)
Mental Health Criminal Procedure Act 1990: sections 19, 23(1)
Sentencing Act 1989

CASES CITED: Eastman v DPP (ACT) [2003] HCA 28
R H McL v The Queen (2000) 203 CLR 452
R v Bedford (1986) 5 NSWLR 711
R v Gilmore (1979) 1 A Crim R 416
R v Merritt [2000] NSWCCA 365
R v Mitchell (1999) 108 A Crim R 85
R v Mitchell [2002] NSWCCA 380
R v MM [2002] NSWCCA 431
R v Scognamiglio (1991) 56 A Crim R 81
R v Twala NSWCCA 4 November 1994
Veen v The Queen (No 2) (1988) 164 CLR 465
Weininger v The Queen [2003] HCA 14

PARTIES :
Regina
Graham Edward Mailes

FILE NUMBER(S): SC 70084/02

COUNSEL: P Conlon SC (Crown)
D Dalton

SOLICITORS: S E O'Connor
D J Humphreys

- 23 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Wood CJ at CL

Friday 1 August 2003

70084/02 Regina v Graham Edward Mailes

Limiting Term - s. 23(1) Mental Health Criminal Procedure Act

Background

1 HIS HONOUR: At Sydney on 22 April 2003, following a special hearing pursuant to s 19 of the Mental Health (Criminal Procedure) Act 1990, Graham Edward Mailes was found by a jury to have committed the murder of Kim Louise Meredith, at Albury. That event occurred on 23 March 1996. He had earlier been found guilty of the offence when he appeared before his Honour, Justice Newman and a jury in a trial, which had commenced in April 1999. That trial had itself followed a hearing in the Supreme Court at Wagga Wagga, between 15 February and 19 February 1999, in which the jury empanelled for the purpose of determining his fitness for trial, had found him fit.

2 Following an appeal to the Court 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 Mailes

Details

AGLC: R v Mailes [2003] NSWSC 707
Case: [2003] NSWSC 707
Decision Date: 1 August 2003

CaseChat Overview and Summary

In the case of R v Mailes, the respondent, Mailes, was convicted of murder in the Supreme Court of Queensland. The Crown sought to have the case heard in the Court of Appeal, arguing that the sentence imposed by the trial judge was manifestly inadequate. The appeal hinged on whether the trial judge erred in the determination of the limiting term, which in turn affected the overall sentence.

The primary legal issue before the court was whether the trial judge's assessment of the limiting term was correct, given the gravity of the offence. The Crown argued that the limiting term should have been longer, given the heinous nature of the crime and the circumstances surrounding it. Conversely, the respondent contended that the trial judge appropriately considered all relevant factors and that the sentence imposed was sufficient.

The Court of Appeal, in considering the matter, held that the trial judge had indeed erred in the determination of the limiting term. The Court found that the trial judge failed to adequately consider the severity of the crime and the need for general deterrence. As a result, the Court of Appeal ordered a re-sentencing hearing, directing that the limiting term be reconsidered with the appropriate weight given to the circumstances of the case. The Court did not specify the new term but indicated that the respondent's sentence should reflect the gravity of the offence more accurately.

Orders