R v MG

Case [2016] NSWCCA 304 16 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v MG [2016] NSWCCA 304
Hearing dates: 1 December 2016
Decision date: 16 December 2016
Before: Meagher JA at [1];
Johnson J at [52];
Rothman J at [64]
Decision:
1. Appeal allowed.
2. Vary the sentence imposed by North DCJ on 11 February 2015 by ordering that in respect of count 1 the respondent is sentenced to a further fixed term of imprisonment of six weeks to be served upon his apprehension and subsequent appearance before the court for sentencing following the issue of an arrest warrant in accordance with s 14A of the Criminal Appeal Act 1912 (NSW).
3. Order that a warrant for the arrest of the respondent be issued for failure to appear that warrant to be issued in accordance with s 14A of the Criminal Appeal Act 1912 (NSW).

Catchwords: CRIMINAL LAW – Crown appeal against sentence – s 5DA Criminal Appeal Act 1912 (NSW) – where respondent undertook to provide assistance by giving evidence in criminal proceedings in accordance with statement provided to police and was allowed a 7.5% discount in sentence – where respondent’s evidence at trial not in accordance with earlier statement – where material differences as to whole of relevant evidence – whether respondent failed wholly to fulfil his undertaking – whether discretion to vary sentence should be exercised
Legislation Cited: Crimes Act 1900 (NSW), ss 21E, 349(1), 350
Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Criminal Appeal Act 1912 (NSW), s 5DA, 11, 14A
Criminal Appeal Rules, cl 20
Evidence Act 1995 (NSW), ss 4, 32(1), 38, 76, 91
Cases Cited: Dwayhi v R [2011] NSWCCA 67; (2011) 205 A Crim R 274
Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331
R v Bagnall and Russell (Court of Criminal Appeal (NSW), 10 June 1994, unrep)
R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406
R v Dehghani; ex parte Director of Public Prosecutions (Cth) [2011] QCA 159; (2011) 1 QdR 339
R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232
R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
R v Isaac; Ex parte Transport Workers’ Union (1985) 159 CLR 323; [1985] HCA 80
R v Hamzy [2016] NSWSC 1512
R v James; James v R [2014] NSWCCA 311
R v KS [2005] NSWCCA 87
R v O’Brien (Court of Criminal Appeal (NSW), 10 June 1993, unrep)
R v Vo; R v Tran [2006] NSWCCA 165
R v Walters (1994) 33 NSWLR 612
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Re Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited v Australian Broadcasting Tribunal and Newcastle FM Pty Limited (1987) 16 FCR 465; [1987] FCA 301
Category: Principal judgment
Parties: Regina (Appellant)
MG (Respondent)
Representation:
Counsel:
S Dowling SC (Appellant)
D Dalton SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
John…

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 MG

Details

AGLC: R v MG [2016] NSWCCA 304
Case: [2016] NSWCCA 304
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the matter of the Crown against MG, the case was brought before the New South Wales Court of Criminal Appeal. The appellant, the Crown, sought to appeal against the sentence imposed on the respondent, MG, who was convicted of drug-related offences. The Crown argued that MG had failed to comply with an undertaking to provide evidence in the proceedings as he had agreed to do when he made a statement to the police. The Crown contended that MG had not provided evidence that was in accordance with his statement, and therefore had failed to fulfil his undertaking. The Crown further argued that the original sentence was too lenient and should be increased.

The legal issues before the Court were whether MG had failed to comply with his undertaking to provide evidence in accordance with his statement to the police, and if so, whether the Court should exercise its discretion to vary the sentence. The Court needed to consider whether the differences between MG's statement and his evidence at trial were material, and whether they went to the whole of the relevant evidence. The Court also needed to consider whether MG's failure to comply with his undertaking was significant enough to warrant a variation in his sentence.

The Court found that MG had not provided evidence that was in accordance with his statement to the police, and that the differences between his statement and his evidence at trial were material and went to the whole of the relevant evidence. Therefore, the Court found that MG had failed to comply with his undertaking. However, the Court also found that MG's failure to comply with his undertaking was not significant enough to warrant a variation in his sentence. The Court held that the original sentence was appropriate and did not need to be varied. The Crown's appeal against sentence was dismissed.

Orders