DPP v McCloy

Case [2006] VSCA 99


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 382 of 2005

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

JAKE MATTHEW McCLOY

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JUDGES:

WARREN, C.J., BUCHANAN and ASHLEY, JJ.A.

WHERE HELD:

WARRNAMBOOL

DATE OF HEARING:

30 March 2006

DATE OF JUDGMENT:

3 May 2006

MEDIUM NEUTRAL CITATION:

[2006] VSCA 99

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Criminal law – Sentencing – Rape – Indecent assault – Causing serious injury intentionally – Threat to kill – Whether total effective sentence of six years and six months’ imprisonment with non-parole period of four years manifestly inadequate – Admittedly serious offending – Young offender – Sentencing of young offenders – Sentence manifestly inadequate – Respondent re-sentenced to total effective sentence of eight years’ imprisonment, with a non-parole period of five years

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APPEARANCES: Counsel Solicitors
For the Appellant Mr J.D. McArdle, Q.C.
with Ms E.J. Gardner
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent Mr P.F. Tehan, QC
with Mr G.J.E.  Steward
Hargreaves (Tony) & Partners

WARREN, C.J.:

  1. I would allow the appeal substantially for the reasons of Ashley, J.A. that I have considered in draft form.  I would also re-sentence the respondent as proposed by his Honour.

BUCHANAN, J.A.:

  1. I agree, for the reasons stated by Ashley, J.A. that, the appeal should be allowed and the respondent re-sentenced as his Honour proposes.

ASHLEY, J.A.:

Statement of the case

  1. This is an appeal by the Director of Public Prosecutions pursuant to s.567A of the Crimes Act 1958 against sentence passed on Jake McCloy in the County Court on 16 November 2005. The respondent, having been found guilty after trial, was convicted and sentenced as follows:

·     Causing serious injury recklessly (Count 2) – 2 years’ imprisonment.

·     Threat to kill (Count 3) – 1 year’s imprisonment.

·     Attempted rape (Count 4) – 2 years’ imprisonment.

·     Rape (Count 5) – 4 years’ imprisonment.

·     Rape (Count 6) – 4 years’ imprisonment.

·     Rape (Count 7) – 3 years’ imprisonment.

·     Rape (Count 9) – 3 years’ imprisonment.

·     Rape (Count 10) – 3 years’ imprisonment.

·     Indecent assault (Count 11) – 6 months’ imprisonment.

·     Threat to kill (Count 14) – 1 year imprisonment.

  1. The relevant provisions and maximum penalties fixed by the Crimes Act for the different offences are as follows:

·     Causing serious injury recklessly – s.17 – 15 years’ imprisonment.

·     Threat to kill – s.20 – 10 years’ imprisonment.

·     Attempted rape – ss.321M and 321P – 20 years’ imprisonment.

·     Rape – s.38(1) – 25 years’ imprisonment.

·     Indecent assault – s.39 – 10 years’ imprisonment.

  1. The learned judge made orders for concurrency and cumulation, and thus arrived at a total effective sentence, as follows:

“The sentences imposed on Counts 3 and 14 are to be served concurrently with each other and concurrently with the sentence imposed on Count 2, that is, two years’ imprisonment.  Six months of that sentence so imposed on Counts 2, 3 and 14 is to be served cumulatively with the sentence imposed on Count 5, that…

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DPP v McCloy [2006] VSCA 99
Case
[2006] VSCA 99
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CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus McCloy involved the respondent being convicted of multiple serious offences, including rape, indecent assault, and causing serious injury with intent. The respondent was originally sentenced to a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years. The DPP sought a review of this sentence, arguing that it was manifestly inadequate given the severity of the crimes committed.

The central legal issue before the court was whether the original sentence imposed was manifestly inadequate, considering the nature and seriousness of the respondent's offences. The court had to determine if the original sentence sufficiently reflected the gravity of the crimes and the need for general and specific deterrence, as well as the protection of society. Additionally, the court had to consider the respondent's age and potential for rehabilitation in the sentencing process.

The court found that the original sentence was indeed manifestly inadequate. It considered the severity of the crimes, which included the use of a knife and threats to kill, as well as the need to protect society. The court also noted the respondent's age and potential for rehabilitation, but ultimately concluded that a harsher sentence was necessary to appropriately reflect the seriousness of the crimes and to serve the purposes of sentencing. Consequently, the respondent was re-sentenced to a total effective sentence of eight years’ imprisonment, with a non-parole period of five years.

In its final orders, the court re-sentenced the respondent to the aforementioned terms, reflecting a stronger deterrent and rehabilitative approach to the crimes committed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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