Medcalf v R [2016] NSWCCA 209

Medcalf v R [2016] NSWCCA 209

The sentencing judge erred by failing to give full and proper effect to the applicant's lack of prior offending and previous good character as mitigating factors, and by conflating remorse with the applicant's inability to explain his offending. Independently, the sentences were manifestly excessive because, despite the substantial objective seriousness of the violent and unprovoked offences, the starting points and final sentences were plainly unreasonable and unjust in light of the mitigating factors and their position at the very top of the sentencing statistics. Leave was granted, the appeal allowed, the District Court sentences quashed, and the applicant re-sentenced.

Jurisdiction
Australia
Judgment Date
30 September 2016
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court at Newcastle on 21 August 2015
Outcome
Leave to appeal granted; appeal allowed; sentences quashed; applicant re-sentenced.
Legal Topics
['sentence Appeal' 'aggravated Enter Dwelling With Intent' 'cause Grievous Bodily Harm With Intent' 'manifest Excess' 'good Character' 'remorse' 'prospects of Rehabilitation' 'early Plea of Guilty']
['criminal Law' 'sentencing'] ['sentence Appeal' 'aggravated Enter Dwelling With Intent' 'cause Grievous Bodily Harm With Intent' 'manifest Excess' 'good Character' 'remorse' 'prospects of Rehabilitation' 'early Plea of Guilty']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court at Newcastle on 21 August 2015

Legal Issues

  1. 1 ['Whether the sentencing judge took into account an irrelevant consideration by finding that each victim held a very real and reasonable fear of being sexually assaulted.' "Whether the sentencing judge failed to properly take into account the applicant's lack of prior convictions and good character as mitigating factors." 'Whether the sentencing judge failed to properly take into account that the applicant was unlikely to re-offend and had good prospects of rehabilitation.' "Whether the sentencing judge failed to properly take into account the applicant's remorse as a mitigating factor." 'Whether the sentences imposed were manifestly excessive.']

Ratio Decidendi

The sentencing judge erred by failing to give full and proper effect to the applicant's lack of prior offending and previous good character as mitigating factors, and by conflating remorse with the applicant's inability to explain his offending. Independently, the sentences were manifestly excessive because, despite the substantial objective seriousness of the violent and unprovoked offences, the starting points and final sentences were plainly unreasonable and unjust in light of the mitigating factors and their position at the very top of the sentencing statistics. Leave was granted, the appeal allowed, the District Court sentences quashed, and the applicant re-sentenced.

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed; applicant re-sentenced.

Orders

  • ['Leave to appeal is granted and the appeal is allowed.' 'The sentences imposed on the applicant in the District Court at Newcastle on 21 August 2015 are quashed.' 'Count 1 - enter with intent to commit a serious indictable offence – to wit assault in circumstances of aggravation with intentional infliction of...