Mayall, David Graham v R [2010] NSWCCA 37

New South Wales Court of Criminal Appeal

CITATION: Mayall, David Graham v R [2010] NSWCCA 37 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/02/2010

JUDGMENT DATE: 4 March 2010

JUDGMENT OF: James J at 1; Howie J at 2; Davies J at 54

DECISION: Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence - Two counts of indecent assault of children under 10 - Error by judge in approach to standard non-parole period - whether any lesser sentence is warranted.

LEGISLATION CITED: Crimes Act 1900 - s 61M(2)

CATEGORY: Principal judgment

MLP v R [2006] NSWCCA 271; 164 A Crim R 93 CASES CITED : R v Mills [2005] NSWCCA 175; 154 A Crim R 40 R v King [2009] NSWCCA 117

PARTIES: David Graham Mayall v Regina

FILE NUMBER(S): CCA 2008/12941

COUNSEL: P A Leask - Crown L Wells - Applicant

SOLICITORS: S Kavanagh - Crown S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/12941

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 19/05/2009

IN THE COURT OF CRIMINAL APPEAL 2008/12941

JAMES J HOWIE J DAVIES J

THURSDAY 4 MARCH 2010 David Graham MAYALL v REGINA Judgment 1 JAMES J: I agree with Howie J. 2 HOWIE J: The applicant pleaded guilty to two offences of indecent assault on a child under the age of 10 years. These were offences contrary to s 61M(2) of the Crimes Act 1900. The maximum penalty for an offence contrary to that section is imprisonment for 10 years. Curiously, having regard to the maximum penalty, there is a standard non-parole period of 8 years. 3 On 19 May 2009 Finnane DCJ sentenced the applicant to a total sentence of 7 years with a non-parole period of 4 years. That sentence dated from 19 May 2009 and the applicant is eligible to be released to parole on 18 May 2013. 4 There are four grounds of appeal filed as follows: