JM v R;; R v JM [2017] NSWCCA 138

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JM v R;; R v JM [2017] NSWCCA 138 Hearing dates: 29 May 2017 Date of orders: 21 June 2017 Decision date: 21 June 2017 Before: Hoeben CJ at CL at [1] Garling J at [221] Bellew J at [ 223] Decision: (1) In relation to the conviction appeal, leave to appeal is granted but the appeal is dismissed. (2) In relation to the Crown appeal against sentence, the appeal is dismissed. Catchwords: CRIMINAL LAW – conviction appeal – historical sex offences – 14 counts of aggravated sexual assault and indecent assault – applicant convicted of 10 counts and acquitted of 4 – fitness to be tried – whether presumption of fitness to be tried was displaced – whether applicant may not have been fit to be tried – whether the appropriate tribunal acting reasonably could not conclude that the applicant was not fit to be tried – whether Presser criteria met – applicant fit to be tried – conviction appeal dismissed – CROWN APPEAL AGAINST SENTENCE – sentence of 6 years and 7 months with non-parole period of 2 years and 3 months – whether sentence manifestly inadequate – application of residual discretion – Crown appeal against sentence dismissed. Legislation Cited: Crimes Act 1900 (NSW) – ss 61E, 71, 73, 76 Criminal Appeal Act 1912 (NSW) – s 5D Criminal Procedure Act 1986 (NSW) – ss 36, 37 Evidence Act 1995 (NSW) – s 137 Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CT v R [2017] NSWCCA 15 Denham v R [2016] NSWCCA 309 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Eastman v The Queen [2000] HCA 29; 203 CLR 1 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 Kirkwood v R [2006] NSWCCA 181 LJS v R [2015] NSWCCA 47 Magnuson v R [2013] NSWCCA 50 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Ngatayi v R [1980] HCA 18; 147 CLR 1 PH v R [2009] NSWCCA 161 Power v The Queen; Selenski v The Queen; Lyons v The Queen [1974] HCA 26; 131 CLR 623 Regina v Henley [2005] NSWCCA 126 R v Presser [1958] VR 45 R v RTI [2003] NSWCCA 283; 58 NSWLR 438 R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Tuala [2015] NSWCCA 8 Wilson v R [2017] NSWCCA 41 Woodward v R [2017] NSWCCA 44 Category: Principal judgment Parties: JM – Applicant/Respondent Regina – Respondent Crown/Applicant Representation: Counsel: K Ginges – Applicant/Respondent T Smith – Respondent Crown/Applicant