R v MJB

Case [2014] NSWCCA 195


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v MJB [2014] NSWCCA 195
Hearing dates:17 September 2014
Decision date: 29 September 2014
Before: 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
Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 61O, 91G, 91H
Criminal Appeal Act 1912 (NSW), s 5D
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 28, 29, 30A, 44, 53, 53A
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Carlton v R [2014] NSWCCA 14
Dinsdale v R (2000) 202 CLR 321
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Griffiths v The Queen (1977) 137 CLR 293;
Hili v The Queen [2010] HCA 45; 242 CLR 520
Kaminic v R [2014] NSWCCA 116
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Gorman [2002] NSWCCA 516; 137 A Crim R 326
R v Harris [2007] NSWCCA 130; 171 A Crim R 267
R v Loveridge [2014] NSWCCA 120
R v Nykolyn [2012] NSWCCA 219
R v Previtera (1997) 94 A Crim R 76
R v Slack [2004] NSWCCA 128
R v Wheeler [2000] NSWCCA 34
R v Wilson [2005] NSWCCA 219
Reeves v The Queen [2013] HCA 57
Category:Principal judgment
Parties: Regina (Applicant)
MJB (Respondent)
Representation: 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

  1. HOEBEN CJ at CL: I agree with Adamson J

  1. FULLERTON J: I agree with Adamson J.

  1. 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.

  1. 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…

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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.

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

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

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