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Magee v The King

Magee v The King

Case [2023] VSCA 80 6 April 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0203

RICKY MAGEE	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2023
DATE OF JUDGMENT:	6 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 80
JUDGMENT APPEALED FROM:	[2022] VCC 2108 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing injury (2 charges) – TES of 4 years and 3 months, with NPP of 2 years and 6 months – Application for leave to appeal against sentence – Extent of childhood deprivation suffered by applicant – Whether sentencing judge erred in application of principles in Bugmy v The Queen (2013) 249 CLR 571 – Errors contended for not reasonably arguable – Manifest excess – Whether sentence manifestly excessive – Complaint of manifest excess not reasonably arguable – Application for leave to appeal refused.

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Counsel
Applicant:		Mr J Murphy
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Slades & Parsons
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
NIALL JA:

On 29 June 2022, the applicant pleaded guilty in the County Court to two charges of intentionally causing injury,[1] one charge of contravening a conduct condition of bail[2] and one charge of committing an indictable offence while on bail.[3] On 25 November 2022, following a plea hearing conducted on 7 September and 22 November 2022, the applicant was sentenced as follows:
[1]Contrary to s 18 of the Crimes Act 1958.
[2]Contrary to s 30A of the Bail Act 1977.
[3]Contrary to s 30B of the Bail Act 1977.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Intentionally causing injury	10 years	16 months	6 months
2	Intentionally causing injury	10 years	3 years and 9 months	Base
RSO 11	Contravening a conduct condition of bail	3 months or 30 penalty units	7 days	-
RSO 12	Committing an indictable offence while on bail	3 months or 30 penalty units	7 days	-
Total Effective Sentence:		4 years and 3 months
Non-Parole Period:		2 years and 6 months
Pre-sentence detention declared:		740 days
Section 6AAA Statement:		Total Effective Sentence 6 years 6 months Non Parole-Period 4 years and 9 months

The applicant now seeks leave to appeal against his sentence. His proposed grounds of appeal are:
1. The sentencing judge erred in assessing the extent of the applicant’s disadvantaged background and in applying the principles enunciated in Bugmy’s case.[4]
2. The individual sentences, order for cumulation, total effective sentence and non-parole period are manifestly excessive having regard to the ten-year maximum penalty for the offence, relevant sentencing purposes, and significant factors in mitigation.
[4]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

Circumstances of the offending

The events giving rise to charges 1 and 2 occurred in November 2019. The victim of charge 1 was Terrie Armstrong, and the victim of charge 2 was Bradley Hooper. At the time of the offending, Ms Armstrong and Mr Hooper were in a…

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 Magee v The King

Details

AGLC: Magee v The King [2023] VSCA 80
Case: [2023] VSCA 80
Decision Date: 6 April 2023

CaseChat Overview and Summary

The case of Magee v The King involved the appellant, who had been convicted of two charges of intentionally causing injury. The appellant had been sentenced to a total effective sentence (TES) of four years and three months, with a non-parole period (NPP) of two years and six months. The appellant applied for leave to appeal against his sentence, arguing that the sentencing judge had erred in applying the principles set out in Bugmy v The Queen. The appellant contended that the sentence was manifestly excessive, particularly in light of the extent of childhood deprivation he had suffered.

The legal issues before the court were whether the sentencing judge had erred in applying the principles set out in Bugmy v The Queen and whether the appellant's application for leave to appeal was reasonably arguable. The court was required to consider whether the sentence was manifestly excessive and whether the appellant's complaint of manifest excess was reasonably arguable. The court also had to consider whether any errors contended for were not reasonably arguable.

The court found that the sentencing judge had not erred in applying the principles set out in Bugmy v The Queen. The court held that the appellant's application for leave to appeal was not reasonably arguable as the sentence was not manifestly excessive. The court found that the sentencing judge had taken into account the extent of the appellant's childhood deprivation, along with other relevant factors, in determining the appropriate sentence. The court also held that the appellant's complaint of manifest excess was not reasonably arguable, as the sentence was within the range of sentences that could be imposed for the offences committed. The court found that any errors contended for were not reasonably arguable.

The application for leave to appeal was refused.

Orders