McCloskey-Sharp v The Queen

Case [2015] VSCA 87


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0030

THOMAS McCLOSKEY-SHARP Applicant
v
THE QUEEN Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
(DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315
OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE: OSBORN JA
WHERE HELD: MELBOURNE
DATE OF HEARING: 6 May 2015
DATE OF JUDGMENT: 6 May 2015
MEDIUM NEUTRAL CITATION: [2015] VSCA 87
JUDGMENT APPEALED FROM: DPP v McCloskey-Sharp [2014] VSC 634 (Hollingworth J)

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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:

  1. 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
  1. 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.

  1. 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.

  1. 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.

  1. As they walked along past the shops, one of the members of the Cassai group, Jesse Smith, removed a street sign from…

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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.

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