McDonald v the Queen - [2013] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0279

MARK ALLAN MCDONALD
	Applicant
v
THE QUEEN	Respondent

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JUDGES	WEINBERG and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	No oral hearing
DATE OF JUDGMENT	23 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 89
JUDGMENT APPEALED FROM	DPP v Glouftis and McDonald (Unreported, County Court of Victoria, Judge Hampel, 8 November 2012)

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CRIMINAL LAW — Application for leave to appeal against sentence — Plea of guilty to one charge of armed robbery — Applicant, together with a co-offender, punched victim repeatedly to the head — Victim robbed of his wallet, mobile phone and watch — Sentencing judge mistakenly proceeded on basis that applicant had no memory of events — Sentencing judge erroneously stated that applicant had approximately 350 prior convictions when true figure was approximately 266 such convictions — Whether sentencing judge erred in not exercising discretion to allow for ‘Renzella time’ — Factual errors had no bearing upon sentence — Sentencing judge appreciated scope of discretion under R v Renzella [1997] 2 VR 88 and took relevant matters into account — Application for leave to appeal refused — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Victoria Legal Aid
For the Crown	No appearance	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
HARPER JA:

The applicant pleaded guilty, in the County Court at Melbourne, to one charge of armed robbery. He was sentenced on 8 November 2012 to a term of four years’ imprisonment with a non-parole period of two years and nine months. He now seeks leave to appeal against sentence.

The circumstances surrounding this offence may be briefly stated. On the morning of 29 September 2011, the applicant, together with a co-offender, Christopher Glouftis, attacked one Mukesh Shrestha. Mr Shrestha had accompanied an acquaintance to a unit in Braybrook which he understood to be a place where drugs could be purchased. He waited outside while his companion went inside.

The applicant and Glouftis emerged from the unit. They dragged Mr Shrestha inside, and there assaulted him, and robbed him of various items. Both men punched him repeatedly to the head. At one stage, Glouftis produced a knife that was about eight inches in length while the applicant armed himself with a screwdriver that had been sharpened to a point. Glouftis grabbed the victim from behind by the hair and held the knife to his throat. In the meantime, the applicant continued to punch the victim to the head.

Both the applicant and Glouftis searched Mr Shrestha’s pockets whilst continually threatening him with the knife and screwdriver. They took his wallet, which contained $75 in cash, as well as his Nepalese driver’s licence. They also took his mobile telephone and his watch. The applicant and Glouftis then punched and kicked him before pushing him into a toilet, and shutting the door. They told him not to come out. He remained there for some 10 minutes or so before…

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 McDonald v the Queen

Details

AGLC: McDonald v The Queen [2013] VSCA 89
Case: [2013] VSCA 89
Decision Date: 23 April 2013

CaseChat Overview and Summary

The case of McDonald v the Queen involved an application for leave to appeal against a sentence imposed by the Supreme Court of Victoria. The applicant, McDonald, had pleaded guilty to one count of armed robbery. Together with a co-offender, McDonald had punched a victim repeatedly, resulting in the victim being robbed of his wallet, mobile phone, and watch. The primary legal issue was whether the sentencing judge had erred in failing to exercise the discretion to allow for the so-called ‘Renzella time’, a term used to describe the time taken by an offender to regain consciousness following a violent act, and whether factual inaccuracies regarding the number of prior convictions affected the sentence imposed.

The court found that while the sentencing judge had indeed made errors in the record concerning the number of prior convictions and the applicant’s memory of the events, these inaccuracies did not influence the sentence. The judge had correctly understood and exercised their discretion under the precedent set by R v Renzella [1997] 2 VR 88. The court considered all relevant factors in determining the appropriate sentence and had clearly articulated their reasons for the sentence imposed. The application for leave to appeal was dismissed, as the court determined that no point of principle of general public importance was involved.

The final orders of the court were that the application for leave to appeal was refused. No appeal would be permitted, and the original sentence would stand as imposed by the sentencing judge. The court’s decision underscored the importance of accurately recording and considering all relevant factors in sentencing but found that the errors in this case did not undermine the fairness or propriety of the sentence.

Orders