R v Kasey McCartney (Unreported, County Court of Victoria, Judge Parsons, 11 July 2011)
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CRIMINAL LAW – Appeal – Conviction – Evidence – Admissibility – Photo board identification evidence – Probative value – Whether outweighed by danger of unfair prejudice – Nature of appeal from decision of trial judge not to exclude – Whether ‘error in, or in relation to, the trial’ – Whether appeal court decides admissibility for itself – Whether conviction for armed robbery unsafe and unsatisfactory – Appeal dismissed – Evidence Act 2008 (Vic) s 137, Criminal Procedure Act 2009 (Vic) s 276(1).
CRIMINAL LAW – Appeal – Sentence – Armed robbery, robbery, motor vehicle theft – Total effective sentence of six years and two months’ imprisonment, with non-parole period of four years and two months – Offences committed while on parole for earlier, similar offences – Parole cancelled – Balance of previous sentence served – Whether sentence imposed offended principle of totality – Appeal dismissed.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr R F Edney
Doogue & O’Brien
For the Respondent
Mr B Sonnet
Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P NEAVE JA COGHLAN AJA:
Summary
The appellant, Kasey McCartney (‘KM’[1]), appeals against his conviction, after a trial before a County Court jury, on one charge of armed robbery (count 1), two counts of robbery (counts 2 and 3) and one count of motor vehicle theft (count 4).
[1]The abbreviation is for ease of reference, not for anonymity.
He also appeals against the total effective sentence of six years and two months’ imprisonment, and the non-parole period of four years and two months’ imprisonment. The individual sentences and orders for cumulation are set out at paragraph 74 below.
Circumstances of the offending
The charges related to three separate robberies, all of which took place in less than two hours on 18 February 2009. The first began at around 4.15 pm, when a man said to be KM, together with three co-offenders, entered the Hawthorn Post Office in Glenferrie Road, Hawthorn. CCTV footage showed that one offender remained close to the door of the store and another stood at the point of entry to the area behind the counter. The remaining two offenders (one of whom was said to be KM) went behind the counter. One of them said, ‘This is a robbery, keep your eyes down, look at the floor’.
Two members of staff were present during the robbery and a number of customers came and went while the robbery was occurring. One of the customers said something to one of the offenders and he swore at her. The offenders took approximately $3,600 in cash, and removed two purses belonging to…
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.
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Details
AGLC
McCartney v The Queen [2012] VSCA 268
Case
[2012] VSCA 268
Decision Date
CaseChat Overview and Summary
The appellant, McCartney, appealed against his conviction for armed robbery and other related offences, as well as the sentence imposed. The appeal was heard in the Court of Appeal, part of the Supreme Court of Victoria. The primary issue for determination was whether the trial judge erred in admitting certain photo board identification evidence which the appellant argued was unfairly prejudicial and of little probative value. The court was also required to determine whether the sentence imposed was excessive, given the appellant's history of similar offences and the principle of totality.
The court found that the photo board identification evidence was indeed of significant probative value and did not unduly prejudice the appellant. The court concluded that the trial judge's decision to admit the evidence was correct and that the appeal court should not substitute its view on admissibility unless there was a clear error. The court found no such error in the trial judge’s decision and upheld the conviction.
Regarding the sentence, the court held that the six years and two months' imprisonment, with a non-parole period of four years and two months, was appropriate given the appellant's criminal history and the seriousness of the current offences. The court found that the sentence did not offend the principle of totality and was not manifestly excessive. The appeal against the sentence was thus dismissed.
The final orders of the court were to dismiss the appeal against both the conviction and the sentence. The appellant remained convicted and sentenced as determined by the trial court.