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:
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.
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
On 18 March this year, Nettle JA granted the appellant leave to appeal against…
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- AGLC
- McDonough v The Queen [2011] VSCA 310
- Case
- [2011] VSCA 310
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the sentence for the arson offence was outside the permissible range of sentencing discretion and whether the sentences for some of the dishonesty offences were manifestly excessive. The court had to examine the principles of sentencing, the nature and circumstances of the offences, and whether the sentence imposed was appropriate in all the circumstances.
The court found that the sentence for the arson offence was outside the permissible range of sentencing discretion. It also found that the sentences on some of the dishonesty offences were manifestly excessive. Consequently, the court allowed the appeal and re-sentenced the appellant. The court's reasoning was based on the necessity to ensure that the sentence was proportionate to the offending and took into account all relevant factors, including the nature and circumstances of the offences, and the need for deterrence and denunciation. The re-sentencing aimed to rectify the excessiveness identified in the original sentence.
Orders
Orders of the court
Appellant re-sentenced.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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