R v MD, BM, NA, JT

Case [2005] NSWCCA 342


Reported Decision:

156 A Crim R 372

New South Wales


Court of Criminal Appeal

CITATION:

R v MD, BM, NA, JT [2005] NSWCCA 342

HEARING DATE(S): 2 September 2005
 
JUDGMENT DATE: 


30 September 2005

JUDGMENT OF:

McClellan CJ at CL at 1; Simpson J at 1; Howie J at 1

DECISION:

1. Appeals in each matter dismissed.; 2. Sentence in relation to BM varied in respect to manslaughter count: "sentenced to a full term of four years imprisonment to expire on 13 October 2008 with a non-parole period of 2 years to commence on 14 October 2004 and to expire on 13 October 2006."

CATCHWORDS:

CRIMINAL APPEAL - appeal by Crown against sentence - plea of guilty to manslaughter - objective gravity of the offence - young offenders - whether the trial judge gave excessive weight to subjective factors

LEGISLATION CITED:

Criminal Appeal 1912
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Young Offenders Act 1997 (NSW)

CASES CITED:

Dinsdale v The Queen (2000) 202 CLR 32
Makarian v The Queen (2005) 215 ALR 213
Malvaso v The Queen (1989) 168 CLR 227
R v AEM SNR & Ors [2002] NSWCCA 58
R v Allpass (1993) 72 A Crim R 561
R v Baker (2000) NSWCCA 85
R v Dalton [2005] NSWCCA 156
R v Dawes [2004] NSWCCA 363
R v Edwards (1996) 90 A Crim R 510
R v Elfar [2003] NSWCCA 358
R v MA [2004] NSWCCA 92
R v Nguyen (unreported, CCA, 14 April 1994)
R v Pham (1991) 54 A Crim R 128
R v Rushby [1977] 1 NSWLR 594
R v Simpson (2001) 53 NSWLR 704
R v Tran [1999] NSWCCA 109
R v Troja (unreported, CCA, 16 July 1991)
R v Wall [2002] NSWCCA 42
R v Webb (unreported, CCA, 12 September 1997)

PARTIES:

The Crown (Appellant)
MD (Resp)
BM (Resp)
NA (Resp)
JT (Resp)

FILE NUMBER(S):

CCA 2005/739; 2005/741; 2005/742; 2005/743

COUNSEL:

L M B Lamprati SC/N Noman (Crown)
P Zahra SC (MD)
M C Ramage QC (BM)
D Carroll (NA)
P Roberts SC (JT)

SOLICITORS:

Solicitor for Public Prosecutions (Crown)
Legal Aid Commission of NSW (MD, BM, NA, JT)

LOWER COURT JURISDICTION:

Supreme Court

LOWER COURT FILE NUMBER(S):

70094/03

LOWER COURT JUDICIAL OFFICER:

Greg James J


                          2005/739
                          2005/741
                          2005/742
                          2005/743

                          McCLELLAN CJ at CL
                          SIMPSON J
                          HOWIE J

                          30 September 2005
REGINA v MD, BM, NA, JT

Judgment


1 THE COURT: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912. The proceedings have an unusual history. On 13 September 2004, the joint trial of MD, NA, BM and JT commenced. At that trial the respondents were charged as follows:

· On 31 December 2002 with murdering Kurt Smith at Emu Plains;


· On 31 December 2002 with robbing Kurt Smith of property, namely a mobile telephone and at the time of such robbery, inflicting grievous bodily harm upon Kurt Smith (MD, NA, BM…

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Details
AGLC
R v MD, BM, NA, JT [2005] NSWCCA 342
Case
[2005] NSWCCA 342
Decision Date

CaseChat Overview and Summary

The appeal was brought by the Crown against the sentences given to four young offenders who had pleaded guilty to manslaughter. The case was heard in the Supreme Court of New South Wales. The four offenders, MD, BM, NA, and JT, were each sentenced to a period of detention in a juvenile justice centre, with a non-parole period of 18 months. The Crown argued that the sentences were too lenient, given the gravity of the offence and the age of the offenders.

The legal issues in the case centred on the principles of sentencing for young offenders who commit serious crimes, and the appropriate weight to be given to subjective factors in sentencing. The Crown argued that the trial judge had given excessive weight to the subjective factors, such as the age and background of the offenders, and had not adequately considered the objective gravity of the offence. The defence argued that the trial judge had appropriately considered all relevant factors and had imposed a sentence that was appropriate for the circumstances of the case.

The court held that the trial judge had erred in giving excessive weight to subjective factors in sentencing. The court held that the appropriate approach to sentencing young offenders who commit serious crimes is to consider both the objective gravity of the offence and the subjective factors relevant to the offender. However, the court held that in this case, the trial judge had not adequately considered the objective gravity of the offence, and had given excessive weight to the subjective factors. The court held that the sentences imposed were too lenient, and remitted the case to the trial judge for re-sentencing.

The court made no final orders in the appeal, as the case was remitted to the trial judge for re-sentencing. The court did, however, provide detailed guidance on the principles of sentencing for young offenders who commit serious crimes, and the appropriate weight to be given to subjective factors in sentencing. The court held that the trial judge should consider the objective gravity of the offence, as well as the subjective factors relevant to the offender, and should impose a sentence that is proportionate to the seriousness of the crime and the circumstances of the offender.

Orders

Orders of the court

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Background

Background to the litigation

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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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