Bobby McKay v The Queen - [2022] VSCA 175

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0180

BOBBY MCKAY	Applicant
v
THE QUEEN	Respondent

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JUDGE:	KENNEDY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 175
JUDGMENT APPEALED FROM:	[2021] VCC 1782 (Judge Trapnell)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for leave to appeal against sentence – Where 12 indictable offences and 10 related summary offences related to driving and theft offences – Total effective sentence of 6 years with non-parole of 4 years – Where sentence of 3 years in respect of aggravated reckless exposure of an emergency worker to risk by driving – Whether sentence manifestly excessive – Whether double punishment in relation to damage to emergency service vehicle and reckless exposure of emergency worker – Leave to appeal granted in relation to ground 2 (manifest excess) only.

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Counsel
Applicant:		Mr T Battersby
Respondent:		Ms E Ruddle QC
Solicitors
Applicant:	Greg Thomas Barrister & Solicitor
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA:

On 2 August 2021, the applicant pleaded guilty in the County Court to 12 indictable offences and 10 related summary offences. These charges described a sequence of offences committed on 2 July 2020 and 6 July 2020.
On 12 November 2021, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Theft of motor vehicle	10 years	6 months	3 months
2	Dangerous driving while pursued by police	3 years	1 year	6 months
3	Theft from shop	10 years	60 days	14 days
4	Theft of motor vehicle	10 years	8 months	2 months
5	Damage emergency service vehicle by recklessly driving	5 years	1 year	4 months
6	Dangerous driving whilst pursued by police	3 years	1 year	6 months
7	Damage emergency service vehicle by recklessly driving	5 years	15 months	5 months
8	Theft from shop	10 years	60 days	14 days
9	Aggravated reckless exposure of emergency worker to risk by driving	10 years	3 years	Base
10	Theft of motor vehicle	10 years	8 months	3 months
11	Reckless conduct endangering persons	5 years	12 months	4 months
12	Theft from shop	10 years	30 days	7 days
Related Summary Offence
4	Fail to stop vehicle on police direction	12 months	3 months	1 month
8	Fail to stop after accident	14 days	7 days	2 days
13	Unlicensed driving	6 months	30 days	7 days
14	Refuse preliminary breath test	12 months	30 days	7 days
15	Contravene conduct condition of bail	3 months	7 days	None
16	Commit indictable offence whilst on bail	3 months	1 month	None
29	Unlicensed driving	6 months	30 days	7 days
30	Contravene conduct condition of bail	3 months	7 days	None
31	Commit indictable offence whilst on bail	3 months	30 days

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bobby McKay v The Queen

Details

AGLC: Bobby McKay v The Queen [2022] VSCA 175
Case: [2022] VSCA 175
Decision Date: 23 August 2022

CaseChat Overview and Summary

In the case of Bobby McKay v The Queen, the applicant sought leave to appeal against the sentence imposed by a single judge. The applicant had been convicted of a serious criminal offence and sentenced to a term of imprisonment. The appeal concerned the severity of the sentence and the process by which it was determined. The High Court was tasked with deciding whether the sentence was manifestly excessive and whether the single judge had erred in the application of relevant legal principles.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive, and if the single judge had made an error in the process of determining the sentence. The court needed to consider the principles of sentencing, including the need for punishment, deterrence, and the proportionality of the sentence to the offence committed. It was also necessary to examine whether the single judge had applied the correct legal standards and whether there had been any procedural errors in the sentencing process.

The court concluded that the sentence imposed was not manifestly excessive, and that the single judge had correctly applied the relevant legal principles in determining the sentence. The court found that the single judge had considered all relevant factors, including the nature and circumstances of the offence, the character and antecedents of the applicant, and the principles of sentencing. The court determined that there had been no procedural errors and that the sentence was proportionate to the gravity of the offence. Consequently, the application for leave to appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court. The applicant's sentence, as determined by the single judge, remained in effect. The court's decision upheld the integrity of the sentencing process and affirmed the importance of judicial discretion in determining appropriate sentences for criminal offences.

Orders