Medcalf v R [2016] NSWCCA 209

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Medcalf v R [2016] NSWCCA 209 Hearing dates: 19 August 2016 Date of orders: 30 September 2016 Decision date: 30 September 2016 Before: Hoeben CJ at CL at [1] Campbell J at [56] Button J at [57] Decision: (1) Leave to appeal is granted and the appeal is allowed. (2) The sentences imposed on the applicant in the District Court at Newcastle on 21 August 2015 are quashed. (3) In lieu thereof the applicant is sentenced as follows: (a) Count 1 - enter with intent to commit a serious indictable offence – to wit assault in circumstances of aggravation with intentional infliction of actual bodily harm, contrary to s 111(2) Crimes Act 1900 – imprisonment with a non-parole period of 4 years and 6 months, commencing 7 February 2014 and expiring 6 August 2018, with a balance of term of 1 year and 6 months, expiring 6 February 2020. (b) Count 2 - cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) Crimes Act 1900 – imprisonment with a non-parole period of 7 years and 3 months, commencing 7 February 2015 and expiring 6 May 2022 with a balance of term of 2 years and 6 months expiring 6 November 2024. (4) The earliest date on which the applicant will be entitled to parole will be 6 May 2022. Catchwords: CRIMINAL LAW – sentence appeal – aggravated enter a building with intent to commit an indictable offence and cause grievous bodily harm with intent to do so – early plea of guilty – two victims suffering serious injuries – offender unable to explain actions – offender person of good character with no previous offences showing genuine remorse – sentence imposed at top of statistical range – error in sentencing process identified – sentence manifestly excessive – offender re-sentenced. Legislation Cited: Crimes Act 1900 (NSW) – ss 33(1)(b) , 111(2) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(3)(e) Cases Cited: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 Dinsdale v R [2000] HCA 54; 202 CLR 321 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 House v R [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Makarian v The Queen [2005] HCA 25; 228 CLR 357 R v Jione [2007] NSWCCA 170 Regina v Darrell Terry McNaughton [2006] NSWCCA 242; 66 NSWLR 566 Ryan v R [2001] HCA 21; 206 CLR 267 Sproates v R [2009] NSWCCA 29 Vragovic v R [2007] NSWCCA 46 Category: Principal judgment Parties: Adam Medcalf - Applicant Regina – Respondent Crown Representation: Counsel: CJ Watson – Applicant S Dowling SC – Respondent Crown