R v MJ

Case [2023] NSWCCA 306 30 November 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v MJ [2023] NSWCCA 306
Hearing dates: 18 September 2023
Date of orders: 30 November 2023
Decision date: 30 November 2023
Before: Simpson AJA at [1];
Price J at [18];
Davies J at [150]
Decision:
(1) Director’s appeal allowed.
(2) The sentence imposed by Grant DCJ in the District Court of New South Wales on 19 May 2023 is quashed.
(3) In lieu thereof, the respondent is sentenced to 6 years’ imprisonment consisting of a non-parole period of 4 years commencing on 21 December 2023 and expiring on 20 December 2027 with a balance of term of 2 years commencing on 21 December 2027 and expiring on 20 December 2029.
(4) The earliest date that the respondent will be eligible to be released on parole is 20 December 2027.

Catchwords:
CRIMINAL LAW – Crown appeal – sexual intercourse with a 10 year old child – offence on Form 1 – respondent serving an aggregate sentence for domestic violence offences – concession by respondent that sentence was manifestly inadequate when the degree of concurrence with existing sentence was taken into account – whether sentence for the offence was manifestly inadequate – whether sentencing judge had taken into account specific deterrence, protection of society and denunciation – whether error in consideration of JIRS statistics – whether error in consideration of JIRS starting date of sentence – residual discretion – resentence – assessment of objective seriousness – consideration of moral culpability – respondent’s deprived background – whether causal link between deprived background and offending – whether causal link necessary – mental health – approach to totality – appeal allowed

Legislation Cited:
Crimes Act 1900 (NSW), ss 66C(1), 66DD(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA(3)
Criminal Appeal Act 1912 (NSW), s 5D
Mental Health Act 2007 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518
Bugmy v The Queen (2013) 249 CLR 571; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337; [2013] HCA 37
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
CMB v Attorney General for New South Wales (2015) CLR 346; [2015] HCA 9
DR v R [2022] NSWCCA 151
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v R; Jones v R (2010) 242 CLR 250; [2010] HCA 45
Hoskins v R [2021] NSWCCA 169
Lloyd v R [2022] NSWCCA 18
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Perkins v R [2018] NSWCCA 62
Postiglione v R (1997) 189 CLR 295 at 307-308; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397; [1997] HCA 26;

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 MJ

Details

AGLC: R v MJ [2023] NSWCCA 306
Case: [2023] NSWCCA 306
Decision Date: 30 November 2023

CaseChat Overview and Summary

In the matter of R v MJ, the respondent was convicted for engaging in sexual intercourse with a child under the age of 10. The appeal to the court was brought by the Crown, seeking a review of the sentence imposed on the respondent. The case was heard by the court, which had to consider the adequacy of the sentence in light of the respondent's background and other relevant factors.

The primary legal issues the court had to address were whether the sentence for the offence was manifestly inadequate, considering the degree of concurrence with the existing sentence for domestic violence offences. Additionally, the court had to determine if the sentencing judge had adequately considered specific deterrence, protection of society, and denunciation. The court also assessed whether there was an error in the consideration of the Juvenile Justice Reintegration Scheme (JIRS) statistics and the starting date of the sentence. Another aspect under consideration was the approach to the totality principle and the application of residual discretion.

The court found that the sentence for the offence was indeed manifestly inadequate, particularly when the degree of concurrence with the existing sentence for domestic violence offences was taken into account. The court concluded that the sentencing judge had failed to adequately consider specific deterrence, protection of society, and denunciation. While the court found no error in the consideration of the JIRS statistics or the starting date of the sentence, it did find an error in the approach to totality and the exercise of residual discretion. Consequently, the appeal was allowed, and the case was remitted for re-sentencing. The court's final orders included a directive for the re-sentencing of the respondent, taking into account the objective seriousness of the offence, the moral culpability of the respondent, the respondent's deprived background, and the appropriate approach to the totality principle.

Orders