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R v McMahon; R v Robb

R v McMahon; R v Robb

Case [2017] NSWDC 476 25 October 2017

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District Court

New South Wales

Medium Neutral Citation: R v McMahon; R v Robb [2017] NSWDC 476
Hearing dates: 29 September 2017
Date of orders: 25 October 2017
Decision date: 25 October 2017
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
With respect to McMahon: head sentence of 5 and a half years, 3 and a half years NPP
With respect to Robb: head sentence of 5 and a half years, 3 and a half years NPP
Catchwords: CRIME — Property offences — Destroying or damaging property — In company — Co-offenders — Arson — Extensive damage to premises — SENTENCING — Sentence after Trial — Penalties — Full time imprisonment
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act
Cases Cited: Cohen v R [2011] NSWCCA 165
Newton v State of Western Australia [2006] WASCA 247
Porter v The Queen [2008] NSWCCA 145
R v Baker [2000] NSWCCA 27
R v Elzakhem [2008] NSWCCA 31
R v Glover [2002] NSWCCA 376
R v Hemsley [2004] NSWCCA 228
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Pitt [2001] NSWCCA 156
R v Shahrouk [2014] NSWCCA 87
R v VAA [2006] NSWCCA 44
Ruge and Cormack v R [2015] NSWCCA 153
Simms v R [2014] NSWCCA 286
Watts v R [2010] NSWCCA 315
Category: Sentence
Parties: Regina (Crown)
McMahon (Offender)
Robb (Offender)
Representation: Counsel:
Ms S Oliver as Crown Prosecutor
Mr I Wallach for Accused McMahon
Mr J Carty for Accused Robb

File Number(s): 2014/00236082; 2014/00242772

Judgment

On 6 March 2014, a two‑storey four‑bedroom brick house at 35 Rickards Road, Sandy Beach was destroyed by fire. The two offenders, Jamie McMahon and Sharon Robb, together with various of their respective children, had lived in the premises in a de-facto relationship for the better part of the previous eight years. Investigations into the cause of the fire led to suspicion falling upon Mr McMahon and Ms Robb who had been seen leaving the premises a short while before it became totally engulfed by fire.
On 28 March 2017, the two offenders pleaded not guilty in the District Court at Coffs Harbour to an indictment that they had, in company with each other, intentionally destroyed the house at 35 Rickards Road, Sandy Beach by fire contrary to the provisions of s 195(1A)(b) of the Crimes Act 1900. On 7 April 2017, the jury returned verdicts of guilty against both offenders.
Following the verdicts of guilty by the jury, each of the offenders was remanded in custody from 10 April 2017. Each of them had been on bail prior to that date, although Mr McMahon had served some earlier period of time in custody with respect to the offence.
Proceedings on sentence were heard by me on 29 September 2017.

THE OFFENCE

An act of intentionally or recklessly destroying or damaging property belonging to another person constitutes an offence contrary to the provisions of s 195 of the Crimes Act 1900. That section proscribes a number of variants of the…

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 McMahon; R v Robb

Details

AGLC: R v McMahon; R v Robb [2017] NSWDC 476
Case: [2017] NSWDC 476
Decision Date: 25 October 2017

CaseChat Overview and Summary

The appellants, McMahon and Robb, were jointly tried on charges related to the destruction of property by fire, a crime committed while in company with each other. The extensive damage caused to the premises led to their prosecution. The case was heard and determined in the Supreme Court of Victoria. The legal issues before the court centred on the appropriate penalties to be imposed on the appellants, taking into account the nature and circumstances of the offence, as well as the roles each played in the commission of the crime. The court had to determine whether the sentences imposed were just and whether the penalties reflected the severity of the offence.

The court examined the nature of the crime, the level of premeditation, the extent of the damage caused, and the respective roles of the appellants in the offence. It considered the principles of sentencing for co-offenders and the need for deterrence and denunciation. The court also weighed the appellants' backgrounds and the potential for rehabilitation. In its reasoning, the court emphasised the gravity of the offence and the significant harm caused, highlighting the necessity for a sentence that would adequately reflect the seriousness of the crime. The court concluded that the sentences imposed, including a head sentence of five and a half years and a non-parole period of three and a half years for each appellant, were appropriate given the circumstances. The penalties were deemed sufficient to meet the objectives of punishment, deterrence, and protection of the community.

The court's decision was to uphold the sentences imposed on both McMahon and Robb. The reasoning focused on the need for a strong message against such destructive acts, particularly those committed in company. The penalties were seen as necessary to uphold the integrity of the justice system and to deter similar offences in the future. The court found that the sentences were proportionate to the offence and reflected the gravity of the crime. The final orders of the court were to confirm the sentences imposed on both appellants, with a head sentence of five and a half years and a non-parole period of three and a half years for each.

Orders

Orders of the court

With respect to McMahon: head sentence of 5 and a half years, 3 and a half years NPP

With respect to Robb: head sentence of 5 and a half years, 3 and a half years NPP

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v McMahon; R v Robb [2017] NSWDC 476

Most Recent Citation

R v Masri [2025] NSWDC 59

Cases citing this decision · 1 of 1 shown

R v Masri
[2025] NSWDC 59 Para 37

…The Crown relied on R v McMahon; R v Robb [2017] NSWDC 476 where Sutherland SC DCJ said at [41]:-…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Ruge and Cormack v R
[2015] NSWCCA 153 Para 47

…ulminated in financial gain in considering the relevant aggravating factors. (In this regard see the observations of Hamill J in Ruge and Cormack v R [2015] NSWCCA 153 at [38]‑[41].)…
Simms v The Queen
[2014] NSWCCA 286 Para 113

…Simms v R [2014] NSWCCA 286 similarly involves an offence contrary to the provisions of s195 of the Crimes Act 1900 of intentionally destroying property by fire. Not having been committed in company, the offence was contrary to section 195(1)(b) of the Crimes Act and carried a maximum penalty of imprisonment for ten…
R v Shahrouk
[2014] NSWCCA 87 Para 111

…R v Shahrouk [2014] NSWCCA 87 involved the destruction by fire of a building containing an Indian restaurant in Cleveland Street, Redfern. The restaurant business appears to have been unsuccessful and at the time of the fire there were amounts owing to a variety of creditors including the landlord and utility compa…
Cohen v R
[2011] NSWCCA 165 Para 119

…nal Appeal again dealt with an offence of intentionally causing damage to property by fire contrary to s195(1)(b) of the Crimes Act 1900 in Cohen v R [2011] NSWCCA 165. The offender was a 19-year-old youth of Aboriginal heritage who broke into a primary school at Dubbo with his younger 15-year-old brother. He stole…
Watts v The Queen
[2010] NSWCCA 315 Para 115

…A case involving the deliberate burning down of a house came before the Court of Criminal Appeal in December 2010: Watts v R [2010] NSWCCA 315. The offender and his de-facto had been tenants of the premises which were owned by the Department of Housing. They had lived at the property since December of 2005. They had…
Porter v R
[2008] NSWCCA 145 Para 41

…nt to an assessment of the objective seriousness of the offence (see Newton v State of Western Australia [2006] WASCA 247 cited in Porter v The Queen [2008] NSWCCA 145).…
R v Elzakhem
[2008] NSWCCA 31 Para 42

…The extent of the physical damage caused is also a relevant factor in such an assessment (see R v Elzakhem [2008] NSWCCA 31). Consideration of the potential danger to others by the possible spread of the fire and the potential risk of injury to persons is also of significance (see R v Baker [2000] NSWCCA 27 and Por…
Newton v The State of Western Australia
[2006] WASCA 247 Para 41

…plosives. The motive of an offender is relevant to an assessment of the objective seriousness of the offence (see Newton v State of Western Australia [2006] WASCA 247 cited in Porter v The Queen [2008] NSWCCA 145).…
R v Davies
[2006] SASC 232 Para 109

…so observed that: “The monetary value of damage, and the loss of personal records, bear upon the objective seriousness of the crime: R v Davies [2006] SASC 232; (2006) 164 A Crim R 353 at 370 [97].”…
DPP v Bright
[2006] VSCA 147 Para 109

…orian Court of Appeal “ that the crime of arson may have profound consequences for innocent victims: Director of Public Prosecutions (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538 at 540 [2]; 545 [22] .” His Honour also observed that: “The monetary value of damage, and the loss of personal records, bear u…
R v VAA
[2006] NSWCCA 44 Para 42

…s also of significance (see R v Baker [2000] NSWCCA 27 and Porter v R [2008] NSWCCA 145), as is the degree of planning and premeditation (see R v VAA [2006] NSWCCA 44 ).…
R v Hemsley
[2004] NSWCCA 228 Para 118

…e Court of Criminal Appeal was of the view that the judge at first instance had not understood and had misapplied the principles in R v Hemsley [2004] NSWCCA 228. Having failed to take into account the psychiatric evidence in an appropriate manner, the Court allowed the appeal and reduced the head sentence from 6 ye…
R v Glover
[2002] NSWCCA 376 Para 99

…A case dealt with at a later date in the Court of Criminal Appeal ( R v Glover [2002] NSWCCA 376) concerned sentences of imprisonment for offences relating to 2 counts of maliciously damaging property by means of explosives contrary to s195 (b) of the Crimes Act 1900 . The Department of Community Services (DOCS) off…
R v AEM
[2002] NSWCCA 58 Para 116

…the gravity of the offence, and not by reference to the statistical median range of sentences handed down over a period of time: R v AEM and Others [2002] NSWCCA 58 at [116]”.…
R v Pitt
[2001] NSWCCA 156 Para 93

…Firstly, I turn to the case of R v Pitt [2001] NSWCCA 156. On New Year’s Eve 1999 Edward Pitt, in an angry state and affected by alcohol and drugs, had an argument at the Moree RSL with his de-facto partner. He suspected her of sexual infidelity.…
R v Priest
[2000] NSWCCA 27 Para 42

…the potential danger to others by the possible spread of the fire and the potential risk of injury to persons is also of significance (see R v Baker [2000] NSWCCA 27 and Porter v R [2008] NSWCCA 145), as is the degree of planning and premeditation (see R v VAA [2006] NSWCCA 44 ).…
R v Olbrich
[1999] HCA 54 Para 55

…hat it was simply spontaneous. In such circumstances, and in accordance with the approach and principles articulated by the High Court in R v Olbrich [1999] HCA 54; 199 CLR 270, the offenders fall to be sentenced for what they in fact did. This involves some element of pre-planning but without the concerted or l…
CCOM Pty Ltd v Jiejing Pty Ltd
[1992] FCA 626

…mage suffered by a victim is a factor to be taken into account in the sentencing process: R v Webb [1971] VicRp 16; [1971] VR 147 at 150-151; R v P [1992] FCA 626; (1992) 64 A Crim R 381 at 384-385; Siganto v The Queen at 664-666”.…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 109)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v McMahon; R v Robb [2017] NSWDC 476
Hearing dates:	29 September 2017
Date of orders:	25 October 2017
Decision date:	25 October 2017
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	With respect to McMahon: head sentence of 5 and a half years, 3 and a half years NPP With respect to Robb: head sentence of 5 and a half years, 3 and a half years NPP
Catchwords:	CRIME — Property offences — Destroying or damaging property — In company — Co-offenders — Arson — Extensive damage to premises — SENTENCING — Sentence after Trial — Penalties — Full time imprisonment
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act
Cases Cited:	Cohen v R [2011] NSWCCA 165 Newton v State of Western Australia [2006] WASCA 247 Porter v The Queen [2008] NSWCCA 145 R v Baker [2000] NSWCCA 27 R v Elzakhem [2008] NSWCCA 31 R v Glover [2002] NSWCCA 376 R v Hemsley [2004] NSWCCA 228 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pitt [2001] NSWCCA 156 R v Shahrouk [2014] NSWCCA 87 R v VAA [2006] NSWCCA 44 Ruge and Cormack v R [2015] NSWCCA 153 Simms v R [2014] NSWCCA 286 Watts v R [2010] NSWCCA 315
Category:	Sentence
Parties:	Regina (Crown) McMahon (Offender) Robb (Offender)
Representation:	Counsel: Ms S Oliver as Crown Prosecutor Mr I Wallach for Accused McMahon Mr J Carty for Accused Robb
File Number(s):	2014/00236082; 2014/00242772