CRIMINAL LAW – Sentence – Application for leave to appeal – Recklessly cause injury and Affray – Sentenced of 2 years and 3 months’ imprisonment with a non-parole period of 1 year and 5 months – Whether judge failed to properly apply the principle of parity – Whether judge erred in failing to give any mitigating weight to indication of willingness to plead guilty to the charge of Affray – No arguable error demonstrated – No different sentence should be imposed – Application refused.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr D Dann
Valos Black & Associates
For the Respondent
Mr B F Kissane QC
Ms V Anscombe, Acting Solicitor for Public Prosecutions
OSBORN JA:
The applicant was convicted following pleas of guilty on 15 October 2014 and was sentenced 19 December 2014 as follows:
Charge no
Charge
Maximum Penalty
Sentence
Cumulation
1.
Recklessly
Cause Injury
5 years imprisonment
2 years imprisonment
Base sentence
2.
Affray
5 years imprisonment
15 months
imprisonment
3 months
imprisonment
Total Effective Sentence:
2 years and 3 months imprisonment
Non‐Parole Period:
1 year and 5 months
Pre‐sentence detention:
Nil
S 6AAA declaration:
3 years imprisonment with a non-parole period of 2 years imprisonment
The circumstances of the offending were as follows. In the early hours of 31 December 2012, the applicant was in Rye with a group of friends including Dylan Closter and Tyrone Russell. After having a few drinks at the caravan park where they were staying, the group had dinner at the Rye Hotel, before spending time at the Rye carnival. The group later moved to an area near the Rye pier, where they continued drinking together.
There were a number of groups of young people at the Rye foreshore that night. One of these groups included David Cassai and eight of his friends. They were strangers to the applicant and his friends.
The Cassai group had been celebrating a birthday at the Portsea Hotel. They had been drinking and were in varying stages of intoxication. They left Portsea on a bus at 12:30 am, heading for Rosebud, where they were staying. However the bus only went as far as Rye, so they proposed to walk the rest of the way. Around 12:45 am, they started walking along Point Nepean Road, spreading out into smaller groups as they walked. Their journey brought them into proximity with the applicant and his friends.
As they walked along past the shops, one of the members of the Cassai group, Jesse Smith, removed a street sign from…
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
McCloskey-Sharp v The Queen [2015] VSCA 87
Case
[2015] VSCA 87
Decision Date
CaseChat Overview and Summary
In the case of McCloskey-Sharp v The Queen, the applicant sought leave to appeal against the sentence imposed by the Supreme Court of Victoria for charges of recklessly causing injury and engaging in an affray. The applicant, having been found guilty, was sentenced to two years and three months’ imprisonment with a non-parole period of one year and five months. The applicant’s grounds for appeal focused on two primary issues: first, whether the trial judge had failed to properly apply the principle of parity in sentencing; and second, whether the trial judge erred by not giving sufficient mitigating weight to the applicant's indication of a willingness to plead guilty to the charge of affray.
The court addressed these issues by examining the sentencing principles and the application of the principle of parity. The principle of parity requires that sentences for similar offences be comparable. The court found that the trial judge had considered the principle of parity and had appropriately compared the sentence with other cases involving similar offences. Regarding the willingness to plead guilty, the court noted that while the indication of a willingness to plead guilty could be a mitigating factor, it was not a decisive one. The court held that the trial judge had appropriately balanced all relevant factors, including the severity of the offences and the need for general deterrence.
Ultimately, the court determined that no arguable error had been demonstrated in the trial judge's sentencing process. The applicant's indication of a willingness to plead guilty did not warrant a significantly different sentence, and the principle of parity was adequately applied. The application for leave to appeal was therefore refused.