RNM v Regina - [2006] NSWCCA 375

CITATION: RNM v Regina [2006] NSWCCA 375

HEARING DATE(S): 26 October 2006

JUDGMENT DATE:
27 November 2006

JUDGMENT OF: Sully J at 1; Simpson J at 87; Hislop J at 95

DECISION: Leave to appeal against sentence granted; Appeal against sentence dismissed

LEGISLATION CITED: Markarian v The Queen [2005] 79 ALJR 1048
R v JCE [2000] 120 A Crim R 18
R v Duffy: unreported, 13 October 1999
R v C (1994) 75 A Crim R 309
R v Huang (1994) 78 A Crim R 111
Iglesias v R [2006] NSWCCA 261
Jones v R (1993) 70 A Crim R 449
Starke (1992) 13 Criminal Appeal Reports (S548)
R v Pollitt [1992] HCA 35; 174 CLR 558
R v Bailey (1988) 35 A Crim R 458
R v Munday [1981] 2 NSWLR 177

PARTIES: RNM
Regina

FILE NUMBER(S): CCA 2006/1880

COUNSEL: J. Girdham - Crown
J. Manuell - Appellant

SOLICITORS: S. Kavanagh - Crown
S. E. O'Connor - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0296

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 18 May 2005

2006/1880

SULLY J
SIMPSON J
HISLOP J
27 November 2006

RNM v REGINA

Judgment

SULLY J:

[NOTE: The Court has ordered that there be no publication of the name of the applicant or of any material from which his identity could be ascertained or of any part of the material in the sealed envelope, the contents of which were Exhibit W in the District Court.]

1 The applicant, “Mr. M” as I shall call him, applies for leave to appeal against sentences of imprisonment that were passed upon him in the Gosford District Court on 18 May 2005.

2 The applicant was presented in that Court on 18 October 2004 for trial upon an indictment containing two counts. Count 1 charged the applicant with having detained for advantage and in circumstances of aggravation a named victim. Such an offence contravenes section 86(2) of the Crimes Act 1900 (NSW), and it attracts upon conviction a maximum penalty of imprisonment for 20 years. Upon any trial of such an offence it is open to the jury, should the jury not be satisfied that there were circumstances of aggravation, to return an alternative verdict of detaining a person for advantage. Such an alternative offence contravenes section 86(1) of the Crimes Act and attracts upon conviction a maximum penalty of imprisonment for 14 years. Count 2 charged the applicant with having assaulted the same victim occasioning to that victim actual bodily harm. Such an offence contravenes section 59 of the Crimes Act and attracts upon conviction a maximum penalty of imprisonment for 5 years.

3 The applicant pleaded upon arraignment not guilty to both of counts 1 and 2 in the indictment. A jury was empanelled and the applicant was put accordingly upon his trial. On the following day the applicant indicated that he wished to change his plea to count 2 in the indictment. He was accordingly re-arraigned…

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 RNM v Regina

Details

AGLC: RNM v Regina [2006] NSWCCA 375
Case: [2006] NSWCCA 375
Decision Date: 27 November 2006

CaseChat Overview and Summary

RNM was convicted of detaining a person for advantage and assaulting the victim occasioning to that victim actual bodily harm. RNM appealed against the sentence. The applicant argued that the sentencing judge erred in his application of Crimes (Sentencing Procedure) Act 1999 s.23 and that at the time of sentence, the applicant was suffering from a symptomatic but undiagnosed life-threatening illness, the treatment of which has rendered his conditions of custody more onerous and made on-going review more difficult. The Court rejected the first ground of appeal, finding that the sentencing judge did not fall into error by not adopting a mechanical approach to the provisions of the sub-section. The Court also rejected the second ground of appeal, finding that the force of the fresh evidence was not such that the Court, having the jurisdiction and the power to intervene and to re-sentence, ought in fact to do so. The Court granted leave to appeal against sentence but dismissed the appeal against sentence.

Orders