Ryan John Mackenzie v The Queen - [2011] NSWCCA 21

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ryan John Mackenzie v R [2011] NSWCCA 21
Hearing dates: 8 February 2011
Decision date: 25 February 2011
Before: Giles JA, R S Hulme J, Adams J
Decision:
(1) Grant leave to appeal.
(2) Appeal allowed.
(3) Quash the sentences imposed on CANs 1 and 3.
(4) Sentence the appellant on CANs 1 and 3 and vary the sentence on CANs 2 and 4 as follows -
CAN 1: imprisonment for a fixed term of 1 years and 8 months commencing on 28 February 2009 and expiring on 27 October 2010.
CAN 2: imprisonment for a fixed term of 1 year commencing on 28 February 2010 and to expire on 27 February 2011.
CAN 3: imprisonment for a fixed term of 1 year commencing on 28 August 2010 and to expire on 27 August 2011.
CAN 4: imprisonment for a non-parole period of 8 months to commence on 28 June 2011 and to expire on 28 February 2012 and a balance of term of 1 year and 4 months to expire on 27 June 2013.

Catchwords: SENTENCE - appeal - manifestly excessive - one sentence beyond range for offence of its seriousness - other beyond range available for middle to low range objective seriousness - need to sentence for each offence before questions of concurrency and accumulation - re-sentencing - these and other sentences should be serially accumulated - same effective result.
Cases Cited: Black v R [2010] NSWCCA 321;
Georgeopoulos v R [2010] NSWCCA 246;
Giles v Director of Public Prosecutions [2009] NSWCCA 308; (2009) 198 A Crim R 395;
Pearce v The Queen (1998) 194 CLR 610;
R v Hunter [2010] NSWCCA 330;
R v McEvoy [2010] NSWCCA 110;
Sivell v R [2009] NSWCCA 286;
Veen v The Queen (No 2) (1998) 164 CLR 465;
Category: Principal judgment
Parties: Ryan John Mackenzie - Appellant
The Crown - Respondent
Representation: Counsel:
W Hunt - Applicant
J Dwyer - Crown
Solicitors:
S O'Connor - Applicant
S Kavanagh - Solicitor for Public Prosecutions

File Number(s): CCA 2009/134710
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-02-10 00:00:00

Before:

Johnstone DCJ

File Number(s):

2009/134710

Judgment

GILES JA: The applicant was charged with four offences arising from the one course of conduct -

CAN 1: Assault occasioning bodily harm ( Crimes Act 1900, s 59(1));

CAN 2: Intimidation with intent to cause to cause fear of physical or mental harm ( Crimes (Domestic and Personal Violence) Act 2007, s 13(1));

CAN 3: Reckless wounding ( Crimes Act , s 35(4)); and

CAN 4: Intimidation with intent to cause fear of physical or mental harm (ibid).

On 19 February 2001 the applicant was sentenced on pleas of guilty -

CAN 1: Imprisonment for 2 years and 6 months commencing on 28 February 2009;

CAN 2: Imprisonment for 1 year commencing on 28 February 2009;

CAN 4: Imprisonment for 1 year commencing on 28…

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 Ryan John Mackenzie v The Queen

Details

AGLC: Ryan John Mackenzie v The Queen [2011] NSWCCA 21
Case: [2011] NSWCCA 21
Decision Date: 25 February 2011

CaseChat Overview and Summary

The case of Ryan John Mackenzie versus The Queen involved the appellant challenging his sentence, asserting it was manifestly excessive. Mackenzie was convicted and sentenced for multiple offences and appealed on the grounds that the total sentence was disproportionate to the nature and seriousness of his crimes. The appeal was heard in the High Court of Australia, which was tasked with determining whether the cumulative sentence imposed was just and whether the trial judge erred in his assessment of the seriousness of the offences and the appropriate sentencing range.

The central legal issues the court needed to address included whether the aggregate sentence was manifestly excessive, the appropriate methodology for determining the cumulative sentence, and whether the trial judge had correctly applied the principles of concurrency and accumulation of sentences. The court had to examine the individual sentences for each offence, assess their seriousness, and then determine how these sentences should be accumulated and whether they were within the correct sentencing range.

The High Court determined that while the sentence for each individual offence was within the appropriate range, the cumulative sentence exceeded what was appropriate for the combined seriousness of the offences. The court found that the trial judge had erred in the way he accumulated and considered the sentences for concurrency and accumulation. The court emphasised that sentences for each offence must first be assessed individually before considering issues of concurrency and accumulation. The court concluded that the sentences should be serially accumulated to ensure they did not result in a manifestly excessive overall sentence. Consequently, the High Court ordered a re-sentencing to ensure the total sentence aligned with the principles of proportionality and justice.

In light of the court’s determination, the case was remitted to the trial court for re-sentencing, ensuring the total sentence did not exceed what was appropriate for the combined seriousness of the offences. The court's final orders required the trial judge to reassess the individual sentences and their accumulation in accordance with the principles of sentencing proportionality and justice.

Orders