R v MM (No 3) - [2018] NSWDC 529

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v MM (No 3) [2018] NSWDC 529
Decision date: 28 August 2018
Jurisdiction: Criminal
Before: Sutherland DCJ SC
Decision:
Application to amend sentence of 27 August 2018 refused.

Catchwords:
Application to amend sentence — Incorrect specification of standard non-parole period — Application of s 43 Crimes (Sentencing Procedure) Act 1999

Legislation Cited:
Crimes Legislation Amendment (Child Sex Offences) Act 2015
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment Act 2007

Cases Cited:
BR v R [2015] NSWCCA 255
GSH v R [2009] NSWCCA 214
McGrath v R [2010] NSWCCA 48
Nguyen v Regina [2017] NSWCCA 39

Texts Cited:
Sentencing Bench Book

Category: Sentence
Parties: Regina (Crown)
MM (Offender)
Representation:
Counsel:
L McSpedden (Offender)
M Fox (Crown)
Solicitors:
Douglas & Ford Criminal Law

File Number(s): 2015/00181812; 2015/00220576; 2015/00220588; 2015/00220612; 2015/00220622; 2015/00223091
Publication restriction: Non-publication order re offender’s name, the identity of each of the victims or any matter which is likely to lead to the identification of such victims, and the identity of various family members and relatives of the victims. Relevant aspects and identities in the judgment which follows have been redacted or substituted with initials.

Judgment

Application pursuant to s 43 Crimes (Sentencing Procedure) Act for amendment to sentence passed on 27 August.

HIS HONOUR: On 27 August 2018 at Penrith I passed an aggregate sentence with respect to 73 offences of which the offender had been found guilty following a judge alone trial which had proceeded in January and February of this year in Wollongong.
I indicated on that occasion that my remarks on sentence should be read in conjunction with my judgment on verdict: R v MM [2018] NSWDC 181. In the course of my remarks on sentence I had cause on a number of specific occasions to make some level of what can properly be described as complaint about the inability of the Court to rely upon the designation of some of the sections which had been pleaded; the maximum penalty which had been indicated; and the specification of the standard non-parole periods in the Crown’s sentence summary.
It is clear that some of the errors I pointed out were correctly identified as errors. However, with respect to a number of other identified mistakes, I was the one in error for the reasons which I shall now briefly indicate.
Standard non-parole periods had originally been introduced in relation to offences occurring after 2003. From time to time subsequent legislative amendments were introduced which imposed standard non-parole periods in respect of additional offences that originally did not carry them and on other occasions increased the specified standard non-parole period from that which had originally been nominated.
Legislative amendments in 2007 were said to apply, in terms, “to the determination of a sentence for an offence whenever committed”, unless the court had already convicted the person being sentenced or had accepted a plea of guilty which had not been withdrawn prior to the commencement of…

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 (No 3)

Details

AGLC: R v Mm (No 3) [2018] NSWDC 529
Case: [2018] NSWDC 529
Decision Date: 28 August 2018

CaseChat Overview and Summary

The case before the court involved an application to amend a sentence by MM, who had originally been sentenced on 27 August 2018. The application sought to correct an error in the specification of the standard non-parole period as outlined under the Crimes (Sentencing Procedure) Act 1999. MM argued that the error in the sentence imposed a lesser penalty than what was intended, and the court was tasked with determining whether this constituted a ground for amendment under section 43 of the Act.

The central legal issue was whether the court had the authority to amend the sentence to correct the misstated standard non-parole period. The court needed to consider the scope and limitations of section 43, which allows for sentence amendments in specific circumstances, and whether the error in question fell within these parameters. The court also had to evaluate whether the correction of the non-parole period was a substantive change that warranted an amendment to the sentence.

After reviewing the relevant legal framework and the specifics of the case, the court concluded that the error in the standard non-parole period did not constitute a ground for amendment under section 43 of the Crimes (Sentencing Procedure) Act 1999. The court found that the error was not of a nature that warranted a substantive change to the sentence. Consequently, the application to amend the sentence was refused.

In light of the decision, the court ordered that the application to amend the sentence of 27 August 2018 be dismissed. This decision reinforces the principle that corrections to sentences must meet specific criteria to be deemed valid under the Act, emphasizing the importance of accuracy in the initial sentencing process.

Orders

Orders of the court

Application to amend sentence of 27 August 2018 refused.

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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Medium Neutral Citation:	R v MM (No 3) [2018] NSWDC 529
Decision date:	28 August 2018
Jurisdiction:	Criminal
Before:	Sutherland DCJ SC
Decision:	Application to amend sentence of 27 August 2018 refused.
Catchwords:	Application to amend sentence — Incorrect specification of standard non-parole period — Application of s 43 Crimes (Sentencing Procedure) Act 1999
Legislation Cited:	Crimes Legislation Amendment (Child Sex Offences) Act 2015 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment Act 2007
Cases Cited:	BR v R [2015] NSWCCA 255 GSH v R [2009] NSWCCA 214 McGrath v R [2010] NSWCCA 48 Nguyen v Regina [2017] NSWCCA 39
Texts Cited:	Sentencing Bench Book
Category:	Sentence
Parties:	Regina (Crown) MM (Offender)
Representation:	Counsel: L McSpedden (Offender) M Fox (Crown) Solicitors: Douglas & Ford Criminal Law
File Number(s):	2015/00181812; 2015/00220576; 2015/00220588; 2015/00220612; 2015/00220622; 2015/00223091
Publication restriction:	Non-publication order re offender’s name, the identity of each of the victims or any matter which is likely to lead to the identification of such victims, and the identity of various family members and relatives of the victims. Relevant aspects and identities in the judgment which follows have been redacted or substituted with initials.