McCarthy v The Queen

[2010] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0740

RICHARD ALEXANDER McCARTHY

v

THE QUEEN

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JUDGES:	Maxwell P and Buchanan JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 April 2010
DATE OF JUDGMENT:	19 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 87
JUDGMENT APPEALED FROM:	R v McCarthy, Unreported 13 July 2009, County Court of Victoria (Judge Howie)

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CRIMINAL LAW – Sentence – Aggravated burglary, intentionally causing serious injury, theft and handling stolen goods – Specific error – Sentence passed below held to be appropriate.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A H Swanwick	MW Law Solicitors
For the Crown	Mr D A Trapnell SC with Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of aggravated burglary, one count of intentionally causing serious injury, two counts of theft and two counts of handling stolen goods.  After a plea, the appellant was sentenced to be imprisoned for a term of 18 months on the count of aggravated burglaries, to a term of 16 months on the count of intentionally causing serious injuries, to a term of one month on one count of thefts, to a term of three months on the other count of theft and for a term of four months on each of the counts of handling stolen goods.

1. With a measure of cumulation, a total effective sentence of two years and eight months’ imprisonment was produced.  The sentencing judge fixed a period of 18 months before the appellant was to be eligible for parole.  The appellant has been granted leave by a single judge of this Court to appeal against the sentence.

1. One summer night in 2008, Kelly Heard and Leonard Searle went to the appellant's house.  Ms Heard and the appellant had previously lived together.  Two children were born of the union.  Ms Heard complained to the appellant that she had been mistreated by one Paul Stewart.  The appellant, who had been drinking, was roused to anger.  He, Heard and Searle went to a house in Bayswater looking for Stewart.  The house was occupied by a former partner of Stewart, one Sandy Clark and her three children, aged ten, seven and four years. 

1. The appellant barged into the house intending to assault Stewart.  The appellant abused Stewart, and in the presence of the three children, struck him a violent blow to the face.  The appellant, Searle and Heard pursued Stewart to a bedroom where the appellant struck further blows.  The appellant, Heard and Stewart and Searle left the house.  As he left, the appellant stole a driver's licence belonging to Stewart and Ms Heard stole a handbag containing property belonging to Ms Clark.

1. As a result of the attack Stewart suffered lacerations, bruising and swelling to his head and face.  He also suffered a fracture of the index finger of one hand which required surgery and causes him continuing pain and disability in his daily life, particularly in his work as a glazier.  Stewart suffered psychological and emotional trauma as a consequence of the attack.

1. The appellant is 43 years’ old.  He has 32 prior convictions from nine Court appearances, principally driving offences and offences of dishonesty but including convictions for damaging property and threatening good in a police gaol.

1. The appellant's parents separated when he was eight years’ old.  He left school in year 10 and completed an apprenticeship as a sign writer.  For most of his working life, the appellant has been a tattooist, an occupation at which he has some skill.  Apart from his children with Ms Heard, the appellant has a son from another relationship.  When he was sentenced the appellant lived alone.

1. Counsel for the appellant and the respondent agree that the sentencing judge erred.  Although the Crown opening included a statement that Searle held a pistol when he entered Stewart's house with the appellant, the sentencing judge was informed that the parties agreed that, as Searle had been acquitted, the presence of a handgun was not to be given any weight in sentencing the appellant.  When he imposed sentence some three weeks later, his Honour apparently forgot the agreement, for he said:

A handgun was produced and you participated in threatening Mr Stewart with it.

This circumstance presumably played a part in the instinctive synthesis which produced the sentence imposed upon the appellant. 

1. The question is whether a different sentence should have been passed.  The question is not to identify the sentence which the County Court judge would have imposed but for his error.  Rather the question is whether this Court considers that the sentence imposed below was appropriate in the light of the circumstances attending the offence and the offender.

1. I consider that the fact that Ms Heard received the same sentence for the offence of aggravated burglary does not advance the appellant's case.  Ms Heard instigated the offending but the appellant willingly assumed the role of the assailant.  I do not think it follows that because his Honour said that a handgun was present when the appellant entered the house, the error accounted for the parity in the sentences. 

1. In my opinion the sentence imposed upon the appellant was appropriate, even lenient.  The invasion at night of Stewart's home and the cowardly assault upon him in company were serious crimes.  In cases of this kind general deterrence is a significant aim.  Home invasion and unprovoked violence occasioning serious injury are not to be countenanced.  The appellant's record discloses a continuing disregard for the law.  Notwithstanding the pleas of guilty, I am of the opinion that no less a sentence should be imposed.

1. I would dismiss the appeal.

MAXWELL P:

1. I agree.

1. The order of the Court is appeal dismissed.

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