SM v The Queen - [2014] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SM v R [2014] NSWCCA 137
Hearing dates: 11 December 2013
Decision date: 25 July 2014
Before: Hoeben CJ at CL
Simpson J
Hall J
Decision:
(1) Leave to appeal granted
(2) Appeal dismissed

Catchwords: CRIMINAL LAW - sentence appeal - application for leave - six counts of assault female and commit act of indecency contrary to s 76 of the Crimes Act 1900 - two counts of sexual assault and commit act of indecency contrary to s 61E(1) of the Crimes Act 1900 - two counts of carnal knowledge contrary to s 67 of the Crimes Act 1900 - additional matters taken into account on a Form 1 - sentencing judge did not err in finding that delay did not mitigate the penalty - sentencing judge did not err in failing to take into account the likelihood that the applicant would serve his sentence in protective custody - sentencing judge did not err in failing to reduce the sentence imposed on account of past assistance to authorities in circumstances where no submission was made to the sentencing judge on the matter of past assistance - sentencing judge properly took into account the youthfulness of the applicant - leave granted - appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bradbery v Regina [2008] NSWCCA 93
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Todd [1982] 2 NSWLR 517
RJP v Regina [2006] NSWCCA 149
RJT v R [2012] NSWCCA 280
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: SM (Applicant)
Regina (Crown)
Representation: Counsel:
I McLachlan (Applicant)
S Herbert (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/48803
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-03-22 00:00:00

Before:

English DCJ

File Number(s):

2012/48803

Judgment

HOEBEN CJ at CL: I agree with Hall J.

SIMPSON J: I agree with Hall J.

HALL J: The applicant, SM, by Notice dated and filed on 23 September 2013, seeks leave to appeal against a total effective sentence of imprisonment of 7 years 9 months commencing on 22 March 2013 and expiring on 21 December 2020, with a total non-parole period of 3 years 9 months expiring on 21 December 2016 imposed by the District Court on 22 March 2013.

The applicant entered guilty pleas to the following offences:

Count 1: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 2: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 3: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 4: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 5: Assault female and commit act of indecency (s.76 of the Crimes Act 1900);

Count 6: Assault female and commit act of indecency (s.76 of the Crimes…

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 SM v The Queen

Details

AGLC: SM v The Queen [2014] NSWCCA 137
Case: [2014] NSWCCA 137
Decision Date: 25 July 2014

CaseChat Overview and Summary

In the matter of SM versus The Queen, the defendant sought leave to appeal against a sentence imposed for multiple offences including assault, indecent acts, and carnal knowledge, pursuant to various sections of the Crimes Act 1900. The application was heard in the Court of Criminal Appeal, which was required to determine if the original sentencing judge erred in several respects, including whether the delay in bringing the matter to court should have been a mitigating factor, and whether the judge should have considered the likelihood of the defendant serving his sentence in protective custody. The court also considered whether the sentencing judge should have reduced the sentence based on past assistance to authorities, a matter that was not raised before the sentencing judge.

The Court of Criminal Appeal examined the application for leave to appeal and the arguments presented regarding the alleged errors in the sentencing process. The court found that the sentencing judge did not err in concluding that the delay in the proceedings did not mitigate the penalty. Additionally, the court held that the sentencing judge was not in error for not considering the likelihood of the defendant serving his sentence in protective custody, as this was not a matter that had been put before the sentencing judge. The court also determined that there was no error in the sentencing judge’s failure to reduce the sentence based on past assistance, as no submission had been made on this matter to the sentencing judge. Finally, the court confirmed that the sentencing judge had appropriately taken into account the youthfulness of the defendant.

The Court of Criminal Appeal granted leave to appeal but ultimately dismissed the appeal, affirming the sentence imposed by the original sentencing judge. The court found no merit in the grounds of appeal presented by the defendant. Consequently, the defendant's appeal was dismissed, and the original sentence stood as imposed.

Orders