NSW Caselaw
New South Wales Court of Criminal Appeal
CITATION: Regina v MAK; Regina v MSK; Regina v MMK [2005] NSWCCA 369
HEARING DATE(S): 11 October 2005
JUDGMENT DATE: 4 November 2005
JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 5; Hall J at 140
DECISION: LEAVE TO APPEAL REFUSED (MAK); APPEALS DISMISSED (MSK and MMK)
CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SEXUAL ASSAULT IN COMPANY IN CIRCUMSTANCES OF AGGRAVATION - SENTENCE - OFFENDERS ENGAGED IN JOINT ENTERPRISE AND PERSONALLY INFLICTING ASSAULTS - TWO TEENAGED VICTIMS - EACH OFFENDER CONVICTED ON NINE COUNTS - NEW EVIDENCE PURPORTING TO MITIGATE BY REASON OF MENTAL CONDITION (MSK) - EVIDENCE RECEIVED BUT SUBMISSIONS REJECTED - NO ERROR IN EXTENT OF CUMULATION (MSK) - APPARENT INCONGRUITY OF FIXED TERMS WHICH WERE LONGER THAN NON PAROLE PERIOD FOR OFFENCE PERSONALLY COMMITTED (MAK) - NO IMPLIED ERROR IN TOTAL IMPOSITION (MAK) - ASSESSMENT OF CRIMES AS IN "WORST CATEGORY" - NO ERROR IN SO FINDING BUT SENTENCES IMPOSED TO BE COMPARED WITH AVAILABLE MAXIMUM LIFE SENTENCE - FINDING THAT OFFENCES IN BREACH OF TRUST ERRONEOUS IN CONTEXT OF SENTENCING ACT s 21A(2)(k) - INTERVENTION NOT REQUIRED FOR THAT REASON - PARITY BETWEEN JUVENILE (MMK) AND MSK - IDENTICAL HEAD SENTENCES BUT MARKEDLY LESS NON PAROLE PERIOD SET FOR JUVENILE - YOUTH OF OFFENDER MMK - SENTENCES WITHIN APPROPRIATE RANGE OF EXERCISE OF DISCRETION - LESSER SENTENCES NOT WARRANTED
Children (Criminal Proceedings) Act 1987 s 61JA Crimes Act 1900 LEGISLATION CITED: s 21A Crimes (Sentencing Procedure) Act 1999 s 6(3) Criminal Appeal Act 1912 s 249A Criminal Procedure Act 1986
Baumer v The Queen 1988 166 CLR 51 Ibbs v The Queen 1987 163 CLR 447 Pearce v The Queen 1998 194 CLR 610 R v Donovan 1934 2 KB 498 R v Gordon 1994 71 A Crim R 459 R v Hammoud 2000 118 A Crim R 66 CASES CITED: R v Simpson 2001 53 NSWLR 704 R v Twala NSWCCA, unrep 4 November 1994 R v Wickham [2004] NSWCCA 193 The Queen v Olbrich 1999 199 CLR 270 Veen v The Queen (No 2) 1988 164 CLR 465 Walden v Hensler 1987 61 ALJR 646
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