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DPP v McCloy

DPP v McCloy

Case [2006] VSCA 99 3 May 2006

Criminal Liability

Sentencing

Rape

Causing serious injury intentionally

Threat to kill

Criminal Law

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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.:

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.:

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

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.

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.

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…

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 McCloy

Details

AGLC: DPP v McCloy [2006] VSCA 99
Case: [2006] VSCA 99
Decision Date: 3 May 2006

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