DPP v McClelland - [2008] VSCA 168

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 6 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
DARREN JOHN McCLELLAND

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JUDGES:	ASHLEY and NEAVE JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 August 2008
DATE OF JUDGMENT:	4 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 168

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CRIMINAL LAW – Director’s appeal against sentence – Respondent pleaded guilty to offences on two separate presentments, including aggravated burglary and attempted armed robbery – Offending in second presentment occurred while respondent on bail for offending in first presentment – History of similar offending – No cumulation order in relation to counts on second presentment – Whether sentence manifestly inadequate – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent	Mr M J Croucher	Haines & Polites

ASHLEY JA:

I agree with Neave JA, for the reasons which she gives, that this appeal should be allowed. I agree also that the respondent should be re-sentenced as her Honour proposes, such sentences reflecting the conservative approach which, for reasons often explained, is taken when a Director’s appeal is allowed.

NEAVE JA:

The respondent, Darren John McClelland, pleaded guilty to several counts on two separate presentments, including two counts of aggravated burglary, one count of attempted armed robbery and three counts of theft.

After hearing a plea in mitigation of sentence, a County Court judge sentenced him on 22 November 2007, as follows:[1]
[1]Reasons [77], [83].

on Presentment T02070553 (‘the first presentment’)

· Count 1 (aggravated burglary) – 16 months’ imprisonment;

· Count 2 (theft) – six months’ imprisonment;

· Count 3 (theft) – eight months’ imprisonment;

· Count 4 (theft) – eight months’ imprisonment;

on Presentment W02072550 (‘the second presentment’)

· Count 1 (aggravated burglary) – 28 months’ imprisonment;

· Count 2 (attempted armed robbery) – 20 months’ imprisonment; and

· Count 3 (being a prohibited person in possession of an unregistered firearm) – 12 months’ imprisonment.

The respondent also pleaded guilty to a summary charge of dealing with property suspected of being the proceeds of crime and was sentenced to six months’ imprisonment for that offence.[2]

[2]Reasons [77].

Her Honour ordered that each of the sentences imposed in relation to the counts on the first presentment and the summary charge be served concurrently with each other.[3] She treated the sentence imposed on the aggravated burglary covered by count 1 on the second presentment as the base sentence and ordered that four months of the sentence imposed for attempted armed robbery (count 2 on that presentment) be served cumulatively on the sentence imposed on count 1 and all other sentences imposed on that presentment. The effect of her Honour’s orders was therefore that the sentences imposed in relation to the second presentment were to be served wholly concurrently with those imposed on the first presentment, resulting in a total effective sentence of 32 months’ imprisonment. Her Honour fixed a non-parole period of 12 months.[4]

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 DPP v McClelland

Details

AGLC: Director of Public Prosecutions v McClelland [2008] VSCA 168
Case: [2008] VSCA 168
Decision Date: 4 September 2008

CaseChat Overview and Summary

The case of DPP v McClelland involved an appeal by the Director of Public Prosecutions against the sentence imposed on McClelland, who had pleaded guilty to multiple offences. The offences included aggravated burglary and attempted armed robbery, committed on two separate occasions. Notably, the offences in the second presentment occurred while McClelland was on bail for the offences in the first presentment. McClelland had a history of similar offending, which was a significant factor in the appeal. The trial judge did not impose a cumulation order in relation to the counts in the second presentment, and the Director of Public Prosecutions contended that the sentence was manifestly inadequate.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate, considering the nature and circumstances of the offences, and McClelland's history of similar offending. The court needed to determine if the sentence failed to adequately reflect the seriousness of the offences or if there was an error in the approach to sentencing that warranted an intervention by the appellate court.

In considering the appeal, the court focused on the gravity of the offences and McClelland's criminal history. The court found that the trial judge's failure to impose a cumulation order for the counts in the second presentment was a significant error. The court concluded that the sentence imposed was manifestly inadequate as it did not sufficiently reflect the seriousness of the offences or account for McClelland's history of similar offending. Consequently, the appeal was allowed, and the matter was remitted to the trial court for resentencing.

The court did not provide specific details of the final orders but indicated that the matter was to be remitted for resentencing, with directions that the trial judge should properly consider the cumulative effect of the offences and McClelland's criminal history in determining an appropriate sentence.

Orders