Regina v Magrin - [2004] NSWCA 354

CITATION: Regina v Magrin [2004] NSWCA 354

HEARING DATE(S): 23/9/04

JUDGMENT DATE:
23 September 2004

JUDGMENT OF: Mason P at 32, 34; Santow JA at 33; Wood CJatCL at 1

DECISION: 1. Allow the Crown application; 2. Revoke the order for bail; 3. Remand the Respondent in custody to appear before his Honour Judge Ellis for sentencing upon the date to which he is currently remanded or upon such other date as the District Court may set.

CATCHWORDS: CRIMINAL LAW - Crown appeal - grant of bail by District Court - conviction for sexual intercourse with child under ten years - whether s 9D of Bail Act applied correctly - whether appropriate regard given to fact that there was no presumption in favour of bail - appeal allowed.

LEGISLATION CITED: Bail Act 1978 - s 4, 9(1)(c) , 9D(1), 9(2)(b), 9B(3), 32(1)(a)(iii), 32(1)(c)(i) and (iv),
Bail Amendment Act 2003
Child Welfare Act 1939 - s 83, 83(2), 83(3)
Children (Criminal Procedure) Act 1987 - s 31A
Crimes Act 1900 - s 61I, 65, 66A
Crimes (Sentencing Procedure) Act 1999 - s 10
Criminal Records Act 1991 - s 7, 7(4), 12
Criminal Records Regulations 2004 -

CASES CITED: Design & Survey Neon Pty Limited v Davies [2004] NSWCA 274
Micallef v ICI Australia Operations Pty Limited & Anor [2001] NSWCA 274
Regina v Roberts and Lardner (1977) 97 A Crim R 456

PARTIES :
Regina
Gregory Allan Magrin

FILE NUMBER(S): CA 40777/04

COUNSEL: Dr P Power SC (Crown)

SOLICITORS: S Kavanagh (Crown)
M Rumore (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : Ellis DCJ

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CA 40777/04

MASON P
SANTOW JA
WOOD CJ at CL

Regina v Gregory Magrin

Judgment

1 WOOD CJ at CL: The Respondent in this Court appeared for trial before his Honour Judge Ellis and a jury in the District Court at Parramatta on a charge of having sexual intercourse with a child under ten years contrary to s 66A of the Crimes Act 1900 (NSW). On 25 August 2004 he was found guilty of that office.

2 Following the trial and over the objections of the Crown, Ellis DCJ granted the Respondent bail by reason of his assessment that:

a) It would be more difficult to obtain a pre-sentence report if he was in custody; and

3 His Honour however informed the Respondent that:

“the grant of bail [was] not an indication that he was minded to impose a non-custodial sentence…rather it was likely that he would be sentenced to a period of full time custody”.

4 The Crown thereafter lodged an application for a review of the bail decision. It was listed on 13 September 2004 before Newman AJ who remitted it to the Court of Appeal, consistently with the practice which was recognised in Regina v…

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 Regina v Magrin

Details

AGLC: Regina v Magrin [2004] NSWCA 354
Case: [2004] NSWCA 354
Decision Date: 23 September 2004

CaseChat Overview and Summary

The Crown appealed to the Court of Criminal Appeal of New South Wales against an order granting bail to the respondent, Mr Magrin. Mr Magrin had been convicted of the offence of sexual intercourse with a child under ten years of age. The central dispute concerned the application of section 9D of the *Bail Act 1978* (NSW) by the District Court judge who granted bail.

The Court was required to determine whether the District Court judge had correctly applied section 9D of the *Bail Act*, and specifically whether appropriate regard had been given to the fact that, in circumstances such as these, there is no presumption in favour of bail.

The Court allowed the Crown's appeal. It reasoned that the District Court judge had failed to give sufficient weight to the serious nature of the offence and the absence of a presumption in favour of bail under the *Bail Act*. The Court found that the judge had not adequately considered the relevant factors required by the legislation when determining whether to grant bail in such a case.

Consequently, the Court of Criminal Appeal revoked the order for bail and remanded the respondent in custody to appear before the District Court for sentencing.

Orders

Orders of the court

1. Allow the Crown application; 2. Revoke the order for bail; 3. Remand the Respondent in custody to appear before his Honour Judge Ellis for sentencing upon the date to which he is currently remanded or upon such other date as the District Court may set.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Regina v Magrin [2004] NSWCA 354
HEARING DATE(S):	23/9/04
JUDGMENT DATE:	23 September 2004
JUDGMENT OF:	Mason P at 32, 34; Santow JA at 33; Wood CJatCL at 1
DECISION:	1. Allow the Crown application; 2. Revoke the order for bail; 3. Remand the Respondent in custody to appear before his Honour Judge Ellis for sentencing upon the date to which he is currently remanded or upon such other date as the District Court may set.
CATCHWORDS:	CRIMINAL LAW - Crown appeal - grant of bail by District Court - conviction for sexual intercourse with child under ten years - whether s 9D of Bail Act applied correctly - whether appropriate regard given to fact that there was no presumption in favour of bail - appeal allowed.
LEGISLATION CITED:	Bail Act 1978 - s 4, 9(1)(c) , 9D(1), 9(2)(b), 9B(3), 32(1)(a)(iii), 32(1)(c)(i) and (iv), Bail Amendment Act 2003 Child Welfare Act 1939 - s 83, 83(2), 83(3) Children (Criminal Procedure) Act 1987 - s 31A Crimes Act 1900 - s 61I, 65, 66A Crimes (Sentencing Procedure) Act 1999 - s 10 Criminal Records Act 1991 - s 7, 7(4), 12 Criminal Records Regulations 2004 -
CASES CITED:	Design & Survey Neon Pty Limited v Davies [2004] NSWCA 274 Micallef v ICI Australia Operations Pty Limited & Anor [2001] NSWCA 274 Regina v Roberts and Lardner (1977) 97 A Crim R 456
PARTIES :	Regina Gregory Allan Magrin
FILE NUMBER(S):	CA 40777/04
COUNSEL:	Dr P Power SC (Crown)
SOLICITORS:	S Kavanagh (Crown) M Rumore (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Ellis DCJ