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

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

The conviction appeal failed because neither the trial transcript nor the expert reports displaced the presumption of fitness to be tried. The applicant's limited education, reading difficulties and verbal memory deficits did not show that he failed to meet the minimum Presser criteria; his defence was clear, his questions were relevant, and the reports did not establish a real question of unfitness. The Crown sentence appeal also failed: although the non-parole period was manifestly inadequate given the seriousness of the offending, the Court exercised the residual discretion not to intervene because increasing the sentence risked aggravating the applicant's Major Depression and his...

Jurisdiction
Australia
Judgment Date
21 June 2017
Procedural Posture
Conviction Appeal and Crown Appeal Against Sentence / Court of Criminal Appeal Appeal From the District Court of NSW
Outcome
Leave to appeal against conviction granted but the conviction appeal dismissed; Crown appeal against sentence dismissed.
Legal Topics
['historical Sex Offences' 'fitness to Be Tried' 'presser Criteria' 'miscarriage of Justice' 'manifest Inadequacy' 'crown Appeal Against Sentence' 'residual Discretion']
['criminal Law' 'criminal Procedure' 'sentencing'] ['historical Sex Offences' 'fitness to Be Tried' 'presser Criteria' 'miscarriage of Justice' 'manifest Inadequacy' 'crown Appeal Against Sentence' 'residual Discretion']

Case Brief

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Procedural Posture

Conviction Appeal and Crown Appeal Against Sentence / Court of Criminal Appeal Appeal From the District Court of NSW

Legal Issues

  1. 1 ['Whether a miscarriage of justice was occasioned because the applicant was unfit to be tried.' "Whether the presumption of fitness to be tried was displaced by material raising a question as to the applicant's fitness." 'Whether the aggregate non-parole period of 2 years and 3 months was manifestly inadequate.' 'Whether the Court should exercise the residual discretion to decline to intervene on the Crown appeal against sentence.']

Ratio Decidendi

The conviction appeal failed because neither the trial transcript nor the expert reports displaced the presumption of fitness to be tried. The applicant's limited education, reading difficulties and verbal memory deficits did not show that he failed to meet the minimum Presser criteria; his defence was clear, his questions were relevant, and the reports did not establish a real question of unfitness. The Crown sentence appeal also failed: although the non-parole period was manifestly inadequate given the seriousness of the offending, the Court exercised the residual discretion not to intervene because increasing the sentence risked aggravating the applicant's Major Depression and his...

Court Disposition

Leave to appeal against conviction granted but the conviction appeal dismissed; Crown appeal against sentence dismissed.

Orders

  • ['In relation to the conviction appeal, leave to appeal is granted but the appeal is dismissed.' 'In relation to the Crown appeal against sentence, the appeal is dismissed.']