In respect of the appeal against the sentences imposed upon MAK the appeal is dismissed. In respect of the appeal against the sentences impose upon MSK the appeal is allowed and the sentences imposed by Hidden J are varied as follows: The sentence of 8 years imprisonment for the third count on the indictment relating to TW is to commence on 13 August 2019. The non-parole period of 4 years is to commence on that date and to expire on 12 August 2023. The sentence of 8 years imprisonment for the fourth count on the indictment relating to TW is to commence on 13 August 2021. The non-parole period is quashed and in lieu there is to be a non-parole period of 4 years and 6 months commencing on that date and to expire on 12 February 2026. The sentence in relation to the offence against CH is quashed and the respondent is sentenced to imprisonment for 9 years to commence on 13 August 2025 with a non-parole period of 12 months to commence on that date and to expire on 12 August 2026 the date upon which the respondent is first eligible to be considered for release to parole.
CATCHWORDS:
Criminal Law - Sentencing - Crown Appeal - relevance of prior convictions for offences committed after offences for which sentence is passed - whether discount for plea of guilty should reflect remorse - the application of the totality principle where multiple sexual assault offences committed against different complainants of increasing seriousness - whether sentences manifestly inadequate.
[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.
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Details
AGLC
R v MAK [2006] NSWCCA 381
Case
[2006] NSWCCA 381
Decision Date
CaseChat Overview and Summary
The case of R v MAK involved a Crown appeal against the sentence imposed on the respondent for multiple sexual assault offences. The court was required to consider the relevance of prior convictions for offences committed after the offences for which the sentence was passed, the appropriate discount for a plea of guilty in the context of remorse, and the application of the totality principle where multiple sexual assault offences were committed against different complainants of increasing seriousness. Additionally, the court had to determine whether the sentences were manifestly inadequate.
The legal issues in this case centred on the correct approach to sentencing for multiple sexual offences, particularly how to account for the totality of the offending, the relevance of subsequent convictions, and the appropriate discount for a plea of guilty. The court had to balance the principles of deterrence, denunciation, and rehabilitation against the need to avoid excessive or disproportionate sentences.
The court found that the primary judge had not adequately considered the totality of the offending and had failed to give appropriate weight to the increasing seriousness of the offences. The court held that the sentences were manifestly inadequate, particularly in light of the respondent’s subsequent convictions. The court emphasised the importance of reflecting the cumulative impact of the offences in the sentencing process and noted that the discount for a plea of guilty should be informed by the level of remorse demonstrated by the offender. The appeal was allowed, and the matter was remitted for re-sentencing.
The final orders of the court included the quashing of the original sentences and the direction that the respondent be re-sentenced, taking into account the totality of the offending and the appropriate discount for the plea of guilty. The court provided detailed guidance on the principles to be applied in re-sentencing, ensuring that the new sentences would adequately reflect the seriousness of the offences and the need for deterrence and denunciation.