R v MM

Case [2002] NSWCCA 431 1 November 2002

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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 2002

PARTIES :

REGINA
v
MM

JUDGMENT 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
(Applicant)
RA Hulme
(Crown)

SOLICITORS:
DJ Humphreys
(Applicant)
SE O'Connor
(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 78

DECISION: Leave to appeal granted; appeal dismissed (see paragraph35).

- 2 -IN THE COURT OF

60302 of 2001

LEVINE J
HIDDEN J
HOWIE J
1 November 2002

REGINA v MM

Judgment

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…

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 MM

Details

AGLC: R v MM [2002] NSWCCA 431
Case: [2002] NSWCCA 431
Decision Date: 1 November 2002

CaseChat Overview and Summary

The case of R v MM involved the appellant, who was initially convicted of 14 offences at his first trial. These convictions were subsequently quashed, leading to a second trial where he was convicted of 11 offences. Despite the change in the number of convictions, the overall sentence imposed remained the same. The primary issue before the court was whether the imposition of the same overall sentence in the second trial constituted an "increase" in the sentence, particularly in light of established sentencing conventions and principles.

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