R v McKay - [2003] NSWCCA 32

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. McKAY [2003] NSWCCA 32

FILE NUMBER(S):
No. 60398 of 2002

HEARING DATE(S): Wednesday 19 February 2002

JUDGMENT DATE: 19/02/2003

PARTIES:
REGINA v.
McKAY, Glenn James

JUDGMENT OF: James J Greg James J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/080

LOWER COURT JUDICIAL OFFICER: English, DCJ.

COUNSEL:
Crown: D.C. Frearson
App: P.M. Winch

SOLICITORS:
Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS:
Criminal law - appeal - sentence - offence of domestic violence involving substantial injury to partner - degree of seriousness of offence - asserted vulnerability and non-violent character of prisoner - no error by primary judge.

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

- 7 -

IN THE COURT OF
CRIMINAL APPEAL

No. 60398 of 2002
JAMES, J.
GREG JAMES, J.
FRIDAY 21 FEBRUARY 2003

REGINA v. GLENN JAMES McKAY

Judgment

GREG JAMES J: This is an application for leave to appeal against sentence in respect of the applicant’s conviction on one count of maliciously inflict grievous bodily harm, an offence punishable under s.35(1)(b) of the Crimes Act 1900 by a maximum penalty of seven years imprisonment. The applicant pleaded guilty to that offence and his Honour Judge English in the District Court imposed upon him by way of sentence for that offence, a sentence of imprisonment for three years to commence on 6 June 2002. In relation to that sentence she imposed a non-parole period of 18 months to expire on 5 December 2003.
The applicant was 37 years of age at the time he came forward for sentence and had been living for some time in a de facto relationship with the woman who was the victim of the offence.
In her remarks on sentence her Honour set out the circumstances of the offence as follows:-
“The circumstances giving rise to the assault were that the offender returned home after attending the Terrigal Memorial Club with his mother on 22 October 2001. On arriving home, he apologised to the victim Karen Anne Shepherd for being late. A short discussion ensued and he left again to purchase some milk. He returned again and another argument developed about dinner. The offender threw a plate of sausages on the floor, he then walked into the dining room and began to throw a number of items around the room.
The victim said, 'If you are going to wreck the place, I'll cal the police. This is my stuff'. He then walked up behind the victim, placed her head in a headlock and forced her to the ground. He struck her a number of times to the face with a closed fist. The victim's daughter attempted to contact the police. He prevented the child from using the phone. He did however convey the victim to a nearby medical centre and then to the Gosford Hospital for treatment.
Police attended the hospital and spoke to the victim. They observed a number of injuries…

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 McKay

Details

AGLC: R v McKay [2003] NSWCCA 32
Case: [2003] NSWCCA 32
Decision Date: 19 February 2003

CaseChat Overview and Summary

In the case of R v McKay, the respondent appealed against the sentence imposed by the primary judge following his conviction for offences of domestic violence involving substantial injury to his partner. The dispute arose in the High Court of Australia, where the respondent contended that the primary judge erred in failing to adequately consider the degree of seriousness of the offence, as well as the respondent's asserted vulnerability and non-violent character. The appeal sought a reduction in the severity of the sentence.

The central legal issue the court had to decide was whether the primary judge had erred in the assessment of the sentence, particularly in relation to the consideration of the respondent's personal circumstances and the degree of seriousness of the offence. The respondent argued that the primary judge did not sufficiently consider his personal characteristics and the relative seriousness of the crime, which should have led to a lesser sentence. The Crown, on the other hand, maintained that the sentence was appropriate given the nature and circumstances of the offence.

The High Court held that the primary judge had not erred in the sentence imposed. The court found that the primary judge had carefully considered the respondent's personal circumstances and the seriousness of the offence, and had appropriately balanced these factors in determining the sentence. The court further noted that the respondent's asserted vulnerability and non-violent character were relevant considerations, but did not outweigh the gravity of the offence committed. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court.

Orders