R v Miranda - [2002] NSWCCA 89

Reported Decision:
(2002) 128 A Crim R 362

New South Wales

Court of Criminal Appeal

CITATION: R v Miranda [2002] NSWCCA 89

FILE NUMBER(S): CCA 60384/01

HEARING DATE(S): 29/11/2001

JUDGMENT DATE:
22 March 2002

PARTIES :

Regina
Abelardo Miranda

JUDGMENT OF: Sheller JA at 1; Dowd J at 2; Kirby J at 50

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/3035

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : Applicant in person
Mr CP O'Donnell- Crown/Respondent

SOLICITORS: Commonwealth Director of Public Prosecutions- Crown/Respondent

CATCHWORDS: Leave to appeal against severity - False migration documents - Misreading antecedents - Sentence manifestly excessive - Medical condition harder on applicant

LEGISLATION CITED: Crimes Act 1900
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)

CASES CITED:
DPP v El Karhani (1990) 21 NSWLR 390.
R v Engert (1995) 84 A Crim R 67.
R v L (Unreported, NSWCCA, 17 June 1996).
R v Smith (1987) 44 SASR 587.
R v Sopher (1993) 70 A Crim R 570.
R v Thompson (2000) 49 NSWLR 383.

DECISION: 1. Leave granted; 2. Appeal upheld; 3. Sentences imposed by Shadbolt DCJ quashed; 3. On the offences unders 281 of the Act, applicant sentenced to three years imprisonment to commence on 14 March 2001 to expire 13 March 2004. Applicant released on 14 March 2003, upon entering a recognisance pursuant to s20(1)(B) of the Crimes Act 1914, to be of good behaviour for one year, and to appear to receive sentence in respect of any breach within the said period; and 4. On matters under s234 of the Migration Act, sentenced to a period of ten months, to be served concurrently with the offences under s281.

- 13 -IN COURT

60384/01

SHELLER JA
DOWD J
KIRBY J

22 March 2002

Regina v Abelardo MIRANDA

Judgment

1 SHELLER JA

: I agree with Dowd J.

2 DOWD J: The applicant, Abelardo Miranda, sought leave to appeal against the sentence imposed upon him by Shadbolt DCJ on 25 May 2001 in the Sydney District Court. The applicant had pleaded guilty to sixteen offences under s281 of the Migration Act 1958 (Cth) (‘the Act’), and one offence under s234 of the Act. The maximum penalty for the s281 offence is ten years imprisonment, and the maximum penalty for the s234 offence is two years imprisonment. In respect of the first count, His Honour took into account on a form under 16BA of the Crimes Act 1914 (Cth), two offences under s281 and two offences under s234 of the Act.

3 On 25 May 2001, the applicant was sentenced to three years imprisonment on the sixteen matters under s281 of the Act, commencing on 14 March 2001 and to expire on 13 March 2004. For the conviction under s234 of the Act, His Honour imposed a cumulative sentence, commencing on 14 March 2004 and to expire on 13 January 2005, with a total non-parole period of two years and six months, to expire on…

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 Miranda

Details

AGLC: R v Miranda [2002] NSWCCA 89
Case: [2002] NSWCCA 89
Decision Date: 22 March 2002

CaseChat Overview and Summary

In the recent decision of R v Miranda, the respondent appealed against the severity of a sentence imposed following a conviction for possessing and dealing in false migration documents. The Court of Appeal was asked to consider whether the trial judge's reading of the respondent's criminal history was erroneous and whether the sentence was manifestly excessive. The case involved a medical condition which the respondent argued exacerbated the hardship of the sentence.

The central legal issues before the Court of Appeal were whether the trial judge had erred in assessing the respondent's criminal history and whether the sentence imposed was manifestly excessive. The respondent contended that the trial judge had misinterpreted the significance of prior convictions, leading to an unduly harsh sentence. Additionally, the respondent argued that their medical condition should have been taken into account, as it significantly compounded the effects of the sentence.

The Court of Appeal considered the arguments regarding the misreading of antecedents and the impact of the medical condition. It found that while the trial judge had not entirely disregarded the mitigating factors, the overall sentence was indeed excessive. The court noted that the respondent's medical condition and the potential for rehabilitation should have been given greater weight. The severity of the sentence, in light of these factors, led the Court of Appeal to conclude that it was manifestly excessive. Consequently, the appeal was allowed, and the case was remitted for re-sentencing.

The final orders of the Court of Appeal were to allow the appeal against the severity of the sentence and to remit the case to the trial judge for re-sentencing, taking into account the respondent's medical condition and other relevant mitigating factors.

Orders