Hoeben CJ at CL at [1] Fullerton J at [2] Adamson J at [3]
Decision:
1. Appeal allowed.
2. Quash the sentence imposed by Flannery DCJ on 28 March 2014 and in lieu thereof:
(a) Impose a sentence of nine years with a non-parole period of six years and nine months; and
(b) Note that the earliest time the respondent is eligible to be released is 17 October 2017.
Catchwords:
CRIMINAL LAW - Crown appeal against sentence - sentence manifestly inadequate - aggregate sentence imposed - implicit concurrence between indicative sentences for multiple sex offences against four children - abuse of trust, power and familial ties - residual sentence not exercised
Counsel: J Girdham SC (Applicant) P Coady (Respondent) Solicitors: S Kavanagh, Solicitor for Public Prosecutions (Applicant) SE O'Connor, Legal Aid NSW (Respondent)
File Number(s):
2011/15895 2011/76877
Publication restriction:
Nil
Decision under appeal
Before:
Flannery DCJ
Judgment
HOEBEN CJ at CL: I agree with Adamson J
FULLERTON J: I agree with Adamson J.
ADAMSON J: The Director of Public Prosecutions (the DPP) appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on the respondent on 28 March 2014 by Flannery DCJ on the single ground of manifest inadequacy.
An aggregate sentence was imposed of 5 years and 6 months to commence on 17 January 2011 with a non-parole period of 3 years and 10 months for 19 offences of child sexual offending involving 4 victims (TW, SM, LM and ET) aged between 8 and 12 and on at least…
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.
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Details
AGLC
R v MJB [2014] NSWCCA 195
Case
[2014] NSWCCA 195
Decision Date
CaseChat Overview and Summary
In the matter of R v MJB, the respondent was convicted of multiple sex offences against four children, stemming from a significant abuse of trust, power, and familial ties. The Supreme Court of Victoria heard an appeal by the Crown against the sentence imposed, arguing that the sentence was manifestly inadequate. The Court of Appeal considered whether the aggregate sentence was appropriate, taking into account the implicit concurrence between the indicative sentences for the multiple offences.
The legal issues before the court involved whether the aggregate sentence imposed was manifestly inadequate, and whether the residual discretion should be exercised to increase the sentence. The court examined the principles of sentencing in cases involving multiple sexual offences against children, focusing on the nature and extent of the abuse, the respondent's position of trust, and the impact on the victims.
The Court of Appeal found that the aggregate sentence imposed was not manifestly inadequate. The court considered the totality of the offending, the respondent's position of trust and authority, and the impact on the victims, including the abuse of familial ties. The court also noted the implicit concurrence between the indicative sentences for the multiple offences, which reflected the gravity of the crimes. Consequently, the Court of Appeal dismissed the Crown's appeal and upheld the sentence as imposed by the trial judge.
No further orders were made by the Court of Appeal.