R v MAK

Case [2005] NSWCCA 369 4 November 2005

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CITATION:
Regina v MAK; Regina v MSK; Regina v MMK [2005] NSWCCA 369

HEARING DATE(S): 11 October 2005

JUDGMENT DATE:

4 November 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Grove J at 5; Hall J at 140

DECISION:
LEAVE TO APPEAL REFUSED (MAK); APPEALS DISMISSED (MSK and MMK)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - SEXUAL ASSAULT IN COMPANY IN CIRCUMSTANCES OF AGGRAVATION - SENTENCE - OFFENDERS ENGAGED IN JOINT ENTERPRISE AND PERSONALLY INFLICTING ASSAULTS - TWO TEENAGED VICTIMS - EACH OFFENDER CONVICTED ON NINE COUNTS - NEW EVIDENCE PURPORTING TO MITIGATE BY REASON OF MENTAL CONDITION (MSK) - EVIDENCE RECEIVED BUT SUBMISSIONS REJECTED - NO ERROR IN EXTENT OF CUMULATION (MSK) - APPARENT INCONGRUITY OF FIXED TERMS WHICH WERE LONGER THAN NON PAROLE PERIOD FOR OFFENCE PERSONALLY COMMITTED (MAK) - NO IMPLIED ERROR IN TOTAL IMPOSITION (MAK) - ASSESSMENT OF CRIMES AS IN "WORST CATEGORY" - NO ERROR IN SO FINDING BUT SENTENCES IMPOSED TO BE COMPARED WITH AVAILABLE MAXIMUM LIFE SENTENCE - FINDING THAT OFFENCES IN BREACH OF TRUST ERRONEOUS IN CONTEXT OF SENTENCING ACT s 21A(2)(k) - INTERVENTION NOT REQUIRED FOR THAT REASON - PARITY BETWEEN JUVENILE (MMK) AND MSK - IDENTICAL HEAD SENTENCES BUT MARKEDLY LESS NON PAROLE PERIOD SET FOR JUVENILE - YOUTH OF OFFENDER MMK - SENTENCES WITHIN APPROPRIATE RANGE OF EXERCISE OF DISCRETION - LESSER SENTENCES NOT WARRANTED

LEGISLATION CITED:

Children (Criminal Proceedings) Act 1987
s 61JA Crimes Act 1900
s 21A Crimes (Sentencing Procedure) Act 1999
s 6(3) Criminal Appeal Act 1912
s 249A Criminal Procedure Act 1986

CASES CITED:
Baumer v The Queen 1988 166 CLR 51
Ibbs v The Queen 1987 163 CLR 447
Pearce v The Queen 1998 194 CLR 610
R v Donovan 1934 2 KB 498
R v Gordon 1994 71 A Crim R 459
R v Hammoud 2000 118 A Crim R 66
R v Simpson 2001 53 NSWLR 704
R v Twala NSWCCA, unrep 4 November 1994
R v Wickham [2004] NSWCCA 193
The Queen v Olbrich 1999 199 CLR 270
Veen v The Queen (No 2) 1988 164 CLR 465
Walden v Hensler 1987 61 ALJR 646

PARTIES:
Regina v MAK; Regina v MSK; Regina v MMK

FILE NUMBER(S):
CCA 2004/2573; 2004/2575; 2005/3

COUNSEL:
R. Cogswell SC with A. Mitchelmore (Crown)
T.A. Game SC (MAK)
S. Odgers SC (MSK)
A. Haesler SC (MMK)

SOLICITORS:
S. Kavanagh (DPP)
Watsons (MAK)
Michael Croke & Co (MSK)
A.L. Wunderlich & Co (MMK)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70002/03; 70201/03; 70203/03

LOWER COURT JUDICIAL OFFICER:
Sully J

2004/2573

2004/2575
2005/3

McCLELLAN CJ at CL
GROVE J
HALL J

Friday 4 November 2005

REGINA v MAK

REGINA v MSK
REGINA v MMK

JUDGMENT

1

McCLELLAN CJ at CL : I have had the benefit of reading the judgment of Grove J in draft. I agree with the orders proposed by his Honour and the reasons for those orders.

2

Grove J refers in [56] to the submission by counsel on behalf of MSK that…

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 MAK

Details

AGLC: R v MAK [2005] NSWCCA 369
Case: [2005] NSWCCA 369
Decision Date: 4 November 2005

CaseChat Overview and Summary

In the case of R v MAK, the appellant was convicted of multiple counts of sexual assault, committed in company with another offender, MSK, in circumstances of aggravation against two teenage victims. Both MAK and MSK were found guilty on nine counts each, involving the infliction of personal assaults. The primary dispute in the appeal pertained to the sentencing of MAK, specifically regarding the cumulative effect of the fixed terms imposed and the appropriateness of the non-parole periods set for both MAK and the co-offender MSK. The Court of Appeal was tasked with assessing whether the sentences were proportionate and whether there was any error in the trial judge's application of the principles of sentencing under the Sentencing Act.

The legal issues before the court included whether the fixed terms were cumulatively excessive, the correctness of the non-parole periods set for both MAK and MSK, and whether there was an error in the trial judge's assessment of the crimes as being in the worst category. The court also had to consider whether the finding that the offences breached a position of trust was erroneous and whether the parity between the sentences imposed on MAK and MSK was appropriate, particularly given the youth of co-offender MSK. The appellant argued that the trial judge had erred in several respects, which warranted a reduction in sentence.

The Court of Appeal found no error in the trial judge's assessment of the crimes as being in the worst category. The court rejected the argument that the fixed terms were cumulatively excessive, noting that the sentences were proportionate to the gravity of the offences. The court also found that there was no error in the imposition of the non-parole periods, which were within the appropriate range of exercise of judicial discretion. The court held that the finding that the offences breached a position of trust was not erroneous in the context of the sentencing principles under the Sentencing Act. While there was a noted incongruity in the fixed terms being longer than the non-parole period for the offence personally committed by MAK, the court found no implied error in the total sentence imposed. The court further found that the sentences were proportionate and appropriate given the circumstances, and there was no need for intervention on the basis of parity between MAK and MSK, despite the markedly different non-parole periods set for MSK due to their youth.

No intervention was required by the Court of Appeal, affirming the sentences imposed by the trial judge. The appeal was dismissed, and the original sentences stood.

Orders