Mackay v The Queen - [2015] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0063

TROY MACKAY	Applicant/Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2015
DATE OF JUDGMENT:	27 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 125
JUDGMENT APPEALED FROM:		Unreported, County Court of Victoria, Judge Smallwood, 28 October 2014

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CRIMINAL LAW – Sentence – Leave to appeal – Appeal – Armed robbery – Sentence of two years’ imprisonment with one year non-parole period – Whether manifestly excessive – Whether specific error – Assumption by judge that appellant would be granted parole – Sentence not manifestly excessive – Specific error established – Leave to appeal granted only with respect to specific error – Appeal allowed – Appellant re-sentenced to nine month’s imprisonment and to community correction order of three years’ duration after release, with mandatory and additional conditions.

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Appearances:	Counsel	Solicitors
Applicant/Appellant	Mr M Phillips	Victoria Legal Aid
Respondent	Mr P B Kidd SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

Pages 1 - 7

ASHLEY JA:

I ask Whelan JA to give the first judgment in this matter.

WHELAN JA:

On the morning of Saturday 31 May 2014 the applicant entered an Australia Post retail outlet wearing a black hooded jacket. He approached the counter with a bag and what appeared to be a small black handgun. The handgun was in fact a toy which the applicant had painted black. He demanded money from a young woman working behind the counter. An older female colleague intervened and at one point another employee also came to the counter. The staff complied with his demands and the applicant escaped with $6,500 in cash. CCTV footage in the retail outlet was sufficiently clear to identify the applicant. A family member of the applicant did identify him and at about the same time he voluntarily went to a police station and confessed.

Three victim impact statements from the staff were tendered on the plea. The three staff involved set out briefly and cogently the emotional impact of the incident on them. Whereas previously they had felt safe and secure at their workplace they are now afraid and anxious. As the sentencing judge observed,[1] the victim impact statements indicate why it is that people go to gaol for committing armed robberies. The fact that the gun was a toy does not prevent victims, who believe it to be real, from suffering fear and anxiety which can continue for very long periods of time.
[1]DPP v MacKay (Unreported, County Court of Victoria, Judge Smallwood, 28 October 2014) (‘Reasons’) [6].

The applicant was charged with one count of armed robbery. He pleaded guilty at the earliest opportunity and was sentenced in the County Court on 28 October 2014 to a term of imprisonment of two years with a non-parole period of one year. At the time of sentence he was 36 years of age.

The sentencing judge referred to the following mitigating factors:

(a)The…

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 Mackay v The Queen

Details

AGLC: Mackay v The Queen [2015] VSCA 125
Case: [2015] VSCA 125
Decision Date: 27 May 2015

CaseChat Overview and Summary

In the matter of Mackay versus The Queen, the respondent sought leave to appeal against the sentence imposed upon the appellant for an offence of armed robbery. The appellant was sentenced to two years’ imprisonment with a non-parole period of one year. The High Court of Australia was tasked with determining the appeal. The central legal issue was whether the sentence was manifestly excessive or if there was a specific error in the sentencing process that warranted reconsideration.

The court examined the nature of the crime, the role of the appellant, and the circumstances surrounding the offence. The appellant contended that the sentence was manifestly excessive and that the judge had made a specific error by assuming that the appellant would be granted parole. The court noted that while the sentence was not manifestly excessive, the specific error identified by the appellant was established. The court held that leave to appeal was granted solely in respect of the specific error identified, and the appeal was allowed. Consequently, the appellant was re-sentenced to nine months’ imprisonment and to a community correction order of three years’ duration after release, with mandatory and additional conditions.

Orders