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McAleer v The Queen

McAleer v The Queen

Case [2015] VSCA 4 4 February 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0231

CHANTELLE McALEER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2015
DATE OF JUDGMENT:	4 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 4
JUDGMENT APPEALED FROM:	DPP v McAleer (Unreported, County Court of Victoria, Judge Cannon, 22 August 2014)

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CRIMINAL LAW — Sentence — Drug and firearm offences —Applicant pleaded guilty to aiding and abetting trafficking in a drug of dependence (methylamphetamine) and possession of a handgun — Applicant sentenced to 2 years’ imprisonment with 10 month non-parole period — Youthful offender — Whether sentence manifestly excessive — Whether imprisonment only sentence available — Appeal allowed — Community correction order substituted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Theo Magazis & Associates
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

THE COURT:

Introduction

On 12 August 2014, the applicant pleaded guilty to aiding and abetting trafficking in a drug of dependence, methylamphetamine[1] (charge 1), and possession of an unregistered general category handgun[2] (charge 2).
[1]Drugs, Poisons and Controlled Substances Act 1981, ss 80(1) and 71AC. The maximum penalty is 15 years’ imprisonment.
[2]Firearms Act 1996, s 7B(1). The maximum penalty is seven years’ imprisonment.

Following a plea hearing conducted on 12 and 22 August 2014, the judge sentenced the applicant on 22 August 2014 to be imprisoned for 20 months on charge 1, and for 10 months on charge 2. Four months of the sentence of imprisonment on charge 2 was ordered to be served cumulatively with the sentence on charge 1. The total effective sentence was thus two years’ imprisonment, upon which the judge fixed a non-parole period of 10 months.

The applicant seeks leave to appeal on two grounds which, despite their drafting, should we think be regarded as particulars of a complaint of manifest excess:

1. The sentencing judge erred by failing properly to give effect to the fact that the Applicant fell to be sentenced as a youthful offender.
2. In all the circumstances, the decision to impose a sentence of imprisonment and require that some portion of it be served immediately caused the sentencing discretion to miscarry.

For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the appellant to a community correction order (‘CCO’) of two years’ duration.

The offending

The appellant’s counsel accepted as accurate the factual background as outlined by the prosecutor:

The Crown case is put that [the appellant] lived with Dean Murphy who was a high-level methylamphetamine dealer. …
Dean Murphy’s phone was intercepted lawfully by police which led them to execute a search warrant at the premises that they shared together at 71 Victoria Street, Seddon.
When police executed a warrant at that premises on 19^th April 2014 (sic 2013) they located and seized amongst other things, three exercise books that contained the [appellant’s]…

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 McAleer v The Queen

Details

AGLC: McAleer v The Queen [2014] VSCA 342
Case: [2015] VSCA 4
Decision Date: 4 February 2015

CaseChat Overview and Summary

The case of McAleer v The Queen involved the applicant who had pleaded guilty to aiding and abetting the trafficking of methylamphetamine and to possession of a handgun. The applicant was sentenced to a term of imprisonment of 2 years with a non-parole period of 10 months. The applicant appealed against the sentence on the basis that it was manifestly excessive and that a term of imprisonment was not the only available sentence. The appeal was heard by the Court of Appeal.

The primary legal issue before the court was whether the sentence imposed by the primary judge was manifestly excessive, particularly given the applicant's age and the fact that he was a youthful offender. The court also had to consider whether imprisonment was the only available sentence in the circumstances of the case. The applicant argued that the sentence was manifestly excessive and that a community correction order would be a more appropriate sentence.

The court found that the sentence imposed was manifestly excessive and that a community correction order would be more appropriate. The court considered the applicant's age, his background, and the fact that he had pleaded guilty and shown remorse. The court also considered the seriousness of the offences and the need for general deterrence. The court concluded that a community correction order would be a more appropriate sentence in the circumstances of the case. The appeal was therefore allowed and a community correction order was substituted for the sentence of imprisonment.

The court ordered that the applicant be subject to a community correction order for a period of 12 months. The order included a number of conditions, including that the applicant participate in a drug and alcohol program, undergo regular drug testing, and refrain from associating with certain individuals. The court also ordered that the applicant pay a fine of $1,000.

Orders