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DPP v McKay

DPP v McKay

Case [2018] VSCA 292 12 November 2018

Criminal Liability

Sentencing

Reckless Causing of Serious Injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0093

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
MATTHEW JOHN McKAY	Respondent

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JUDGES:	BEACH, HARGRAVE JJA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2018
DATE OF JUDGMENT:	12 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 292
JUDGMENT APPEALED FROM:	[2018] VCC 475

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CRIMINAL LAW – Sentence – Crown appeal – Cause serious injury recklessly, assault with weapon and possess controlled weapon without excuse – Sentence of 18 months on cause serious injury recklessly – Total effective sentence of 1 year 8 months with non-parole period of 10 months – Manifest inadequacy – Whether sentences manifestly inadequate – Sentence on cause serious injury recklessly, total effective sentence and non-parole period manifestly inadequate – Respondent re-sentenced to total effective sentence of 4 years and 8 months, with non-parole period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K E Judd QC with Ms S Coombes	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr S Bayles with Ms M J Brown	Balmer & Associates

BEACH JA
HARGRAVE JA:
ALMOND AJA:

On 21 March 2018, the respondent pleaded guilty in the County Court to one charge of recklessly causing serious injury, one charge of assault with a weapon and one charge of possession of a controlled weapon without excuse.

On 16 April 2018, the judge sentenced the respondent to be imprisoned for 1 year and 8 months and fixed a non-parole period of 10 months. The total effective sentence is made up as follows:

Charge on Indictment H12406492
Offence

Maximum

Sentence

Cumulation

1 Causing serious injury recklessly [s 17 Crimes Act 1958] 15 years 18 months Base sentence

Summary Charges

5
Assault with weapon

[s 24(2) Summary Offences Act 1966]
2 years 9 months 2 months

9 Possess controlled weapon without excuse [s 6 Control of Weapons Act 1990] 120 penalty units or 1 year 3 months

Total Effective Sentence:

1 year 8 months

Non parole period:

10 months

There is a single ground of appeal with particulars as follows:

Ground of Appeal
The sentence imposed on Charge 1, the total effective sentence and the non-parole period are manifestly inadequate.
Particulars:
In sentencing the respondent, the learned sentencing judge:
(a)failed to give sufficient weight to the nature and objective gravity of the offending;

(b) failed to have sufficient regard to the impact on the victim;
(c)failed to have sufficient regard to the maximum penalty prescribed for the offence of recklessly causing serious injury;
(d)failed to give sufficient weight to the principles of general deterrence, just punishment and denunciation;
(e)failed to give sufficient weight to the principle of specific deterrence; and

(f) gave too much weight to factors in mitigation.

Circumstances of the offending

On Sunday 27 August 2017, Mr Mudd hosted a small social gathering at his home in Broadford. The purpose of the gathering was to watch a boxing match on television. Mr Mudd was at…

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 McKay

Details

AGLC: DPP v McKay [2018] VSCA 292
Case: [2018] VSCA 292
Decision Date: 12 November 2018

CaseChat Overview and Summary

In the case of Director of Public Prosecutions v McKay, the respondent appealed against his sentence for causing serious injury recklessly, assault with a weapon, and possessing a controlled weapon without excuse. The matter was heard in the Court of Appeal in Victoria. The Director of Public Prosecutions sought an appeal against the sentence imposed by the trial judge, arguing that the sentence was manifestly inadequate.

The court was required to determine whether the sentence imposed by the trial judge was manifestly inadequate. The appeal hinged on the appropriate weight to be given to the seriousness of the respondent's criminal conduct and the need for general deterrence in sentencing. The court also considered the totality of the sentence, the non-parole period, and whether the sentence was proportionate to the crimes committed.

The court found that the trial judge had failed to adequately consider the seriousness of the respondent's criminal conduct, particularly the use of a weapon and the risk of death or serious injury. The court held that the sentence imposed was manifestly inadequate, and the appeal was allowed. The respondent was re-sentenced to a total effective sentence of 4 years and 8 months, with a non-parole period of 2 years and 6 months. This re-sentencing was intended to reflect the gravity of the crimes and provide adequate general deterrence.

Orders