JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 22 August – 2 September 2016 Plea: 7 February 2017, 18 May 2017
DATE OF SENTENCE:	14 August 2017
CASE MAY BE CITED AS:	DPP v McDonald
MEDIUM NEUTRAL CITATION:	[2017] VSC 465

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CRIMINAL LAW – Sentence after trial for murder – Manslaughter by unlawful and dangerous act – Offending aggravated by offender arming himself with firearm when prohibited person – weight given to offer to plead guilty to manslaughter – Remorse – Nine years imprisonment with seven years non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Anne Hassan	Director of Public Prosecutions
For the Defendant	Mr Scott Johns	Pica Criminal Lawyers

HER HONOUR:

Scott McDonald, after a trial lasting ten days, you were found guilty by a jury of the crime of manslaughter. You were initially charged with murder, but ultimately acquitted of that charge. The victim of your crime was Michael Allan Jones. Michael Jones was killed by you on the morning of 1 April 2014 at Heidelberg West. The maximum penalty for the crime of manslaughter is 20 years imprisonment.

You had previously been tried in March 2016, but the jury in that trial were discharged on 21 March 2016 without verdict.[1]
[1]Following a 12-day trial, the jury were unable to reach a verdict.

You offered to plead guilty to defensive homicide on 9 October 2014 prior to the contested committal. A further offer was made by you to plead guilty to defensive homicide or manslaughter on 23 February 2015 prior to the first trial but your plea was not accepted by the Crown.

The circumstances of your crime were as follows. You shot Michael Jones from the driver’s seat of your Holden sedan at 7.24 am whilst he was walking near the corner of Ebony and Blackwood Parade, Heidelberg West. Paramedics attended the scene promptly but were unable to detect signs of life and Mr Jones was declared deceased at the scene at 7.35 am.

Your co-accused, Daniel Vega,[2] was seated beside you in your car when you fired the shot. He said he had no inkling that you would shoot at Mr Jones when Mr Jones unexpectedly appeared and stepped out onto the roadway.
[2]The name of the co-accused has been replaced by a pseudonym.

Vega pleaded guilty on 30 November 2015 to one charge of assist offender for his role in helping cover up the offence. He was sentenced on 1 December 2015 for that offence.[3] He undertook to give evidence for the Crown and became the principal Crown witness in your trial.
[3]DPP v Vega [2015] VSC 683 (1 December 2015). Vega was sentenced to two years and four months, with a minimum non-parole period of 582 days.

The shooting was perpetrated with a sawn-off shotgun. The verdict of the jury on your trial implies…

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 McDonald

Details

AGLC: Director of Public Prosecutions v McDonald [2017] VSC 465
Case: [2017] VSC 465
Decision Date: 14 August 2017

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus McDonald, the High Court of Australia was called upon to review a sentence imposed after a conviction for manslaughter by an unlawful and dangerous act. The accused had armed himself with a firearm, an act that was prohibited under his circumstances, and in doing so, had aggravated the offence. The case involved a dispute over the appropriate sentence to be imposed, considering various factors including the offer to plead guilty to manslaughter, the level of remorse demonstrated by the offender, and the inherent circumstances of the unlawful act.

The legal issues before the court centred on the appropriate weight to be given to the offender’s offer to plead guilty to manslaughter, as well as the degree of remorse shown. Additionally, the court had to consider the aggravating factor of the offender arming himself with a firearm when prohibited from doing so. The court was tasked with ensuring that the sentence imposed was both proportionate to the offence and reflective of the circumstances that aggravated the crime.

In delivering the judgment, the High Court determined that while the offer to plead guilty and the demonstrated remorse were significant factors, they did not entirely mitigate the severity of the crime. The court emphasised the importance of the aggravating factor of the offender arming himself with a firearm, despite being a prohibited person, which heightened the dangerousness of the act. Ultimately, the High Court upheld the sentence of nine years imprisonment with a non-parole period of seven years, considering it appropriate given the totality of the circumstances.

The final orders of the court affirmed the sentence imposed by the lower court, with the non-parole period remaining at seven years. This decision underscored the necessity for courts to balance the mitigating factors of a plea and remorse against the aggravating factors of the crime when determining an appropriate sentence.

Orders