Reported Decision:
(2002) 135 A Crim R 216
New South Wales
Court of Criminal Appeal
CITATION: R v MM [2002] NSWCCA 431 FILE NUMBER(S): CCA 60302 of 2001 HEARING DATE(S): 13 September 2002 JUDGMENT DATE:
1 November 2002PARTIES :
REGINAv
MMJUDGMENT OF: Levine J at 1; Hidden J at 36; Howie J at 37
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 00/31/0222 LOWER COURT JUDICIAL
OFFICER :Coolahan DCJ
COUNSEL : R J Button
RA Hulme
(Applicant)
(Crown)SOLICITORS: DJ Humphreys
SE O'Connor
(Applicant)
(Crown)CATCHWORDS: Criminal Law - procedure - sentencing - first trial convicted of 14 offences quashed - new trial - convicted of 11 offences - same overall sentence imposed - question of "increase" - sentencing convention - principles in operative sentences LEGISLATION CITED: Criminal Appeal Act 1912 CASES CITED: Campbell v The Queen; Baker v The Queen [1996] FCA 1
Griffiths v The Queen (1989) 167 CLR 372
Pearce v The Queen (1998) 194 CLR 610
Regina v Bedford (1986) 5 NSWLR 711
Regina v Gilmore (1979) 1 A Crim R 416
R H McL v The Queen (2000) 203 CLR 452
Regina v Merritt [2000] NSWCCA 365
Regina v Mitchell [2002] NSWCCA 380
Regina v MM [2000] NSWCCA 78DECISION: Leave to appeal granted; appeal dismissed (see paragraph35).
- 2 -IN THE COURT OF
60302 of 2001
1 November 2002LEVINE J
HIDDEN J
HOWIE J
1 LEVINE J: The applicant seeks leave to appeal against sentences imposed on him in the District Court on 12 April 2001 by his Honour Judge Coolahan.
2 The trial before Coolahan DCJ was a retrial consequent upon a decision of this Court in R v MM [2000] NSWCCA 78. At his first trial in the District Court before his Honour Judge Job, the applicant was convicted and sentenced in respect of fourteen offences. At the retrial before Coolahan DCJ, the applicant was convicted of eleven of the same charged fourteen offences and acquitted of three of them.
3 Judge Coolahan imposed the same concurrent sentences in respect of each of the eleven offences as had been imposed for those after the first trial. The total effective sentence remained one of 8 years with a non-parole period of 6 years.
4 In each trial the applicant was indicted for fourteen offences, thirteen of which were sexual in nature. The fourteenth was assault occasioning actual bodily harm. The table appended to these reasons sets out a brief description of each count in the indictment, relevant facts, the outcome in the second trial and the sentences imposed in each trial in respect of which there was a verdict of guilty. From that table it can be seen that the jury found the applicant not guilty of the assault occasioning actual bodily harm in the second trial for which a fixed term of two years imprisonment had been imposed at the conclusion of the first, and by direction, verdicts…
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- AGLC
- R v MM [2002] NSWCCA 431
- Case
- [2002] NSWCCA 431
- Decision Date
CaseChat Overview and Summary
The court examined the principles governing sentencing in cases where convictions from a previous trial are quashed and new convictions are made in a subsequent trial. The central legal issue was whether the imposition of the same overall sentence in the second trial could be considered an "increase" in the sentence. The court had to determine if the principles established in prior cases required a different approach to sentencing in such circumstances. It considered whether the sentence should be viewed in light of the total punishment meted out in the first trial or if the focus should be solely on the sentence imposed in the second trial.
In reaching its decision, the court relied on previous judgments that outlined the principles to be applied in cases where a defendant is convicted in a second trial following the quashing of convictions from a first trial. It found that the overall sentence imposed in the second trial did not constitute an "increase" if the total punishment remained the same. The court held that the principles in the operative sentences should be applied in determining whether there was an increase in the sentence. Given that the total punishment did not change, the court concluded that the sentence in the second trial did not amount to an increase.
The final orders of the court were that the appeal against sentence was dismissed. The court upheld the imposition of the same overall sentence in the second trial, finding that it did not constitute an increase in the sentence, in line with established sentencing principles.
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
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Ratio Decidendi
Legal Principle Established
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