McGillivray v The Queen - [2012] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0022
ANDREW McGILLIVRAY	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN JA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	16 January 2012
DATE OF JUDGMENT:	16 January 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 3
JUDGMENT APPEALED FROM:	R v McGillivray (Unreported, County Court of Victoria, Judge Lacava, 7 February 2011)

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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Sentence of 4 years’ imprisonment with a minimum term of 2½ years’ imprisonment not manifestly excessive – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G M Hughan	Robert Stary Lawyers
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

In the evening of Friday, 29 January 2010, the appellant attended the Rosebud Hotel with friends. When the hotel closed at about 3 am the following morning, the appellant and his friends were invited to attend at a house in Rosebud West to continue drinking.

The appellant purchased a bottle of bourbon whisky to take to the house. When he arrived, there were approximately ten to 15 people in attendance.

The appellant became agitated about other people drinking the bourbon which he had brought.

At about 5 am, the appellant confronted one Travis Downing, whom he did not know, and accused him of drinking his bourbon. Downing told the appellant to leave. The appellant went to the kitchen saying, ‘Fuck it, then, I’m going to kill him’ and picked up a kitchen knife, approached Downing from behind and stabbed him in the back several times before he was restrained.

The police arrived and arrested the appellant. He was taken to the Rosebud police station and at 11.26 am his blood alcohol content was recorded as being .077.

The victim suffered five stab wounds and was flown to Royal Melbourne Hospital where he underwent emergency surgery. Downing has since suffered constant back pain and ongoing headaches. He was unable to work for three and a half months after the attack.

The appellant was arraigned in the County Court and pleaded guilty to a count of intentionally causing serious injury. After a plea, he was sentenced to be imprisoned for a term of 4 years. A minimum term of 2½ years was fixed before the appellant was to be eligible for parole.

The appellant has appealed against the sentence. The grounds of appeal are as follows:

1.That the sentence imposed was manifestly excessive in all the circumstances.
2.That the learned sentencing judge failed to give sufficient weight to the principles outlines in the case of R v Mills.[1]
3.The learned sentencing judge erred in finding that this case was a ‘serious example of a serious offence’, thereby affording excessive weight to the circumstances of the offence and the level of seriousness.
4.The learned sentencing judge gave excessive weight to a prior appearance by the appellant in the Children’s Court.

[1][1998] 4 VR 235.

The appellant…

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 McGillivray v The Queen

Details

AGLC: McGillivray v The Queen [2012] VSCA 3
Case: [2012] VSCA 3
Decision Date: 16 January 2012

CaseChat Overview and Summary

The appellant, McGillivray, appealed against his sentence for intentionally causing serious injury. The case was heard in the High Court of Australia. McGillivray was convicted of stabbing his partner, resulting in serious injuries. He was sentenced to four years' imprisonment with a minimum term of 2½ years before parole eligibility. The primary issue for the court was whether the sentence was manifestly excessive. The court also considered whether there was a point of principle that warranted the court's intervention.

The court reviewed the principles governing sentence appeals, particularly focusing on whether the sentence was manifestly excessive. The court assessed the nature and circumstances of the offence, including the intent behind the act and the harm caused. It also considered the appellant's personal circumstances, such as his background and previous criminal history. The court concluded that the sentence imposed was not manifestly excessive, as it was within the range of sentences typically imposed for such offences. There was no point of principle that would warrant the court's intervention. The court emphasised the importance of sentencing discretion and the need to avoid unnecessary interference in the trial judge's assessment of the appropriate sentence.

Given the court's findings, the appeal was dismissed. The sentence of four years' imprisonment with a minimum term of 2½ years was upheld as not manifestly excessive. The court's decision underscored the trial judge's authority in sentencing and the need to respect the balance between punishment and rehabilitation.

Orders