McDonough v The Queen

[2011] VSCA 310

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0048

TIMOTHY BARRY McDONOUGH
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HANSEN JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2011
DATE OF JUDGMENT:	13 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 310
JUDGMENT APPEALED FROM:	DPP v McDonough (Unreported, County Court of Victoria, Judge Hampel, 2 March 2010)

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CRIMINAL LAW – Sentence – Appeal against total effective sentence of six years and six months’ imprisonment with non-parole period of four years and six months’ for offences of arson, reckless conduct endangering life, burglary and theft – Whether sentence on count of arson manifestly excessive – Whether sentences on some of dishonesty offences manifestly excessive – Sentence for arson offence outside permissible range of sentencing discretion – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Edney	Victoria Legal Aid
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. On 2 March 2010 the appellant, Timothy McDonough, was sentenced for 12 offences as follows:

Charge	Offence	Maximum		Sentence		Cumulation
1	Theft	10 years’ imp [S 74 Crimes Act 1958]		6 months’ imp		6 month’s imp
2	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
3	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
4	Theft	10 years’ imp [S 74 Crimes Act 1958]		6 months’ imp		–
5	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
6	Theft	10 years’ imp [S 74 Crimes Act 1958]		6 months’ imp		–
7	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
8	Theft	10 years’ imp [S 74 Crimes Act 1958]		6 months’ imp		–
9	Arson	15 years’ imp [s 197(1) and (6), Crimes Act 1958]		5 years’ imp		Base sentence
10	Reckless conduct endangering life	10 years’ imp [S 22 Crimes Act 1958]		4 years’ imp		1 year imp
11	Burglary	10 years’ imp [S 76 Crimes Act 1958]		6 months’ imp		–
Separate Presentment
1	Handling stolen goods	[S 88(2) Crimes Act 1958]		6 months’ imp		–
Total Effective Sentence:		6 years, 6 months’ imprisonment
Non-Parole Period:		4 years, 6 months’ imprisonment
Pre-sentence Detention Declared:		173 days
6AAA Statement:		Total effective sentence:  6 years, 9 months’ imp Non-parole period:  4 years, 9 months’ imp.

1. The appellant had earlier pleaded guilty to counts 1‑8 and 11 on the first presentment and to the single count on the second presentment.  He had gone to trial on counts 9 and 10 and been found guilty.  His defence to those counts had been that, although he accepted that he must have started the fire, the Crown could not exclude the reasonable possibility that he had done so accidentally.

Leave to appeal

1. On 18 March this year, Nettle JA granted the appellant leave to appeal against…