R v MJM

Case [2004] NSWCCA 66 12 March 2004

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CITATION: R v MJM [2004] NSWCCA 66

HEARING DATE(S): 12 March 2004

JUDGMENT DATE:
12 March 2004

JUDGMENT OF: Grove J at 1, 58; Simpson J at 2; Sperling J at 52

DECISION: Leave to appeal against sentence granted, appeal dismissed

CATCHWORDS: appeal against severity of sentences - pleas of guilty - Form 1 offences - nine counts of break, enter and steal - enter land with intent to steal - using a weapon to resist arrest - subjective circumstances - remarks on sentence - fresh evidence - no error in sentencing process - administrative remedy

LEGISLATION CITED: Crimes Act 1900 Division 2 Part 13A
Crimes (Sentencing Procedure) Act 1999 Division 3 Part 3, s44
Criminal Appeal Act 1912 s6 subs3

CASES CITED: House v The King (1936) 55 CLR 499
R v Cartwright (1989) 17 NSWLR 243
R v Fernando (1992) 76 A Crim R 58
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Willard [2001] NSWCCA 6
The Queen v Many (1990) 51 A Crim R 54
The Queen v P [2003] NSWCCA 298
The Queen v Pearce (1998) 194 CLR 610
The Queen v W [2001] NSWCCA 172

PARTIES :
Crown - Respondent
MJM - Applicant

FILE NUMBER(S): CCA 60361/03

COUNSEL: Crown - G Rowling
Applicant - S Kluss

SOLICITORS: Crown - S Kavanagh
Applicant B Sandland

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/31/0260; 01/31/0261

LOWER COURT
JUDICIAL OFFICER : English DCJ

60361/03

GROVE J
SIMPSON J
SPERLING J
Friday 12 March 2004

REGINA v MJM

Judgment

1 GROVE J: The Court is in a position to give judgment. I ask Simpson J to give the judgment.

2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court at Gosford on 4 April 2002 by English DCJ following his pleas of guilty to a series of charges on an indictment.

3 In all, the applicant pleaded guilty to no less than nine counts of break enter and steal, one of entering land with intent to steal, and one of using a weapon to resist arrest. In addition, he asked that one count of driving in a manner dangerous and one of possession of a prohibited drug listed on a Form 1 be taken into account pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999. Her Honour sentenced the applicant as follows:

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 MJM

Details

AGLC: R v MJM [2004] NSWCCA 66
Case: [2004] NSWCCA 66
Decision Date: 12 March 2004

CaseChat Overview and Summary

The appellant was convicted of nine counts of breaking and entering and stealing, and one count of using a weapon to resist arrest. The appellant, MJM, was sentenced to imprisonment terms for each offence, to be served concurrently. MJM appealed against the severity of the sentences, claiming that the trial judge failed to properly consider the subjective circumstances of the case. The appeal was heard by the Court of Criminal Appeal in New South Wales.

The central legal issues before the court were whether the trial judge erred in the assessment of the appropriate sentence for each offence, and whether the appeal should be allowed due to the severity of the sentences. The court considered whether the trial judge had properly exercised his discretion in sentencing, and whether the sentences imposed were manifestly excessive. Additionally, the court assessed whether the fresh evidence provided by MJM warranted a re-evaluation of the sentences.

The court found that the trial judge had not erred in the sentencing process. The court emphasised that the primary consideration in sentencing was the protection of the community and the deterrence of crime. The court acknowledged the appellant's guilty pleas and the seriousness of the offences, and held that the sentences were appropriate given the circumstances. The court rejected the argument that the sentences were manifestly excessive, and dismissed the appeal. The court also held that any errors in the remarks made by the trial judge did not constitute a ground for appeal, and that the appellant's remedy lay in an administrative process.

The court dismissed the appeal and affirmed the original sentences imposed by the trial judge. The appellant was required to serve the concurrent imprisonment terms for the nine counts of breaking and entering and stealing, and the single count of using a weapon to resist arrest.

Orders