R v Main - [2009] NSWCCA 14

New South Wales
Court of Criminal Appeal

CITATION: R v Main [2009] NSWCCA 14

HEARING DATE(S): 11 December 2008

JUDGMENT DATE:
13 February 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 2; Howie J at 45

DECISION: Crown appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Life sentences imposed prior to Sentencing Act 1989 - Total of three impositions - Two offences committed on the same occasion and the third whilst in custody serving sentence for the earlier crimes - Discussion of procedure and specification of facts when application for redetermination made - Crown appeal asserting inadequacy of resentence for second murder committed while in custody - Life sentence left in place but non-parole period of 25 years ordered - Crown contention that longer non-parole period should be set - 25 years congruent with pattern of redetermined sentences for offences of similar degree of criminality - Finding by trial judge that rehabilitation under way - Some ambiguity about finding at first instance - Assuming level of seriousness and facts contended by Crown intervention not required

LEGISLATION CITED: Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedures) Act 1999
Criminal Appeal Act 1912
Sentencing Act 1989

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen 1998 194 CLR 610
R v Robinson [2008] NSWCCA 188

PARTIES: REGINA - Appellant
Robert Michael MAIN - Respondent

FILE NUMBER(S): CCA 2008/11674

COUNSEL: D Frearson SC with J Girdham (Appellant/Crown)
A Haesler SC (Respondent)

SOLICITORS: S Kavanagh (Solicitor of Public Prosecutions)
S O'Connor (Legal Aid Commission)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2003/002

LOWER COURT JUDICIAL OFFICER: Adams J

LOWER COURT DATE OF DECISION: 4 July 2008

LOWER COURT MEDIUM NEUTRAL CITATION: R v Main [2008] NSWSC 692

CCA 2008/11674

McCLELLAN CJ at CL
GROVE J
HOWIE J
13 February 2009

REGINA v Robert Michael MAIN

Judgment

1 McCLELLAN CJ at CL: I agree with Grove J.

2 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence. The challenge is against a decision of Adams J in an application to redetermine an existing life sentence pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, whereby his Honour declined to set a specified term for the sentence but set a non parole period of 25 years. Mr Frearson SC, Deputy Director of Public Prosecutions, who appeared with Ms Girdham for the appellant informed the Court that it was not sought that the order fixing a non parole period be set aside in its entirety so as to effectively imprison the respondent for his natural life but it was sought that there be a non parole period fixed greater than 25 years. In an exchange with the Bench Mr Frearson suggested that an order which “adds a number of years, perhaps four, to the non parole period” would be appropriate.

3 The background, which includes a multiplicity of serious crimes having been committed by the respondent is complicated and it would…

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 Main

Details

AGLC: R v Main [2009] NSWCCA 14
Case: [2009] NSWCCA 14
Decision Date: 13 February 2009

CaseChat Overview and Summary

In the case of R v Main, the respondent appealed against the resentencing for two counts of murder. The first two murders occurred on the same occasion, and the third was committed while the respondent was in custody serving a sentence for the earlier crimes. The Crown argued that the resentencing was inadequate, particularly for the second murder. The Court of Appeal for the State considered the legal issues surrounding the resentencing of life sentences imposed prior to the Sentencing Act 1989. The court had to determine whether the resentencing complied with the relevant legal standards and if the non-parole period of 25 years was appropriate. The Crown contended that a longer non-parole period should have been set, while the respondent argued that the period was congruent with the pattern of redetermined sentences for similar crimes.

The Court of Appeal found that the resentencing for the second murder was appropriate, given the trial judge's finding that the respondent's rehabilitation was underway. The court noted some ambiguity about the finding at first instance but assumed the level of seriousness and facts contended by the Crown. The court concluded that the resentencing complied with the relevant legal standards and the non-parole period of 25 years was appropriate, given the trial judge's finding of rehabilitation. The appeal was dismissed, and the resentencing was left in place.

Orders