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:

1. 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. 

1. 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. 

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

1. 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. 

1. 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.

1. 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.

1. 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. 

1. 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.

1. The appellant was 20 years’ old when the offence was committed and was two months short of his 22^nd birthday when he was sentenced.

1. The appellant had a troubled upbringing.  His parents parted when he was very young, a circumstance to which the appellant struggled to adjust.  He initially lived with his mother and was badly treated by various male partners of his mother.  He then went to live with his father.

1. The appellant lived in various places after his parents separated.  He attended a number of schools and left after completing Year 9.  When he left school, the appellant was unemployed and developed agoraphobia, being unable to leave the house.  The appellant received counselling for his condition and enrolled at a TAFE college in a course of building and construction.  He then obtained work as a kitchen hand.  He lost his job after his arrest and was unemployed when he was sentenced.

1. A report by a psychiatrist was tendered in the course of the plea.  The psychiatrist expressed the opinion that the appellant suffered from mild anxiety but said, ‘I am disinclined to make any particular psychiatric diagnosis’.

1. A report by a therapist was also tendered.  The therapist said: 

According to Mr McGillivray, he had felt confronted and belittled by the victim throughout the evening.  His poor communication and social skills and his inability to examine his own emotional responses to the situation most likely precluded him from withdrawing from the interaction.  This resulted in the steady build up of feelings and humiliation and anger.  These feelings were compounded by Mr McGillivray’s inability to defend or assert himself verbally.  His inability to make effective decisions was further blunted by his significant intoxication.

1. The appellant appeared at the Children’s Court in February 2005 on a charge of assault with a weapon.  No conviction was recorded and the appellant was released on a good behaviour bond in the sum of $50.

1. Counsel for the appellant did not pursue the third ground of appeal and treated grounds 2 and 4 as particulars of ground 1. 

1. The appellant could rely upon mitigating factors of some significance.  He had made an early plea of guilty, he was relatively young, his only prior appearance was at the age of 15 years, he had abstained from alcohol and the sentencing judge found that he was remorseful.  On the other hand, the offence was serious indeed.  The appellant attacked the victim from behind with a knife, professing an intention to kill him and stabbed him several times, only ceasing because he was restrained.  The attack was unprovoked.  The maximum sentence for the offence is 20 years’ imprisonment.  The sentencing judge said that the appellant’s prospects of rehabilitation were, ‘At best, guarded’.  Notwithstanding this view, the non‑parole period fixed by his Honour was in fact generous to the appellant. 

1. Counsel for the appellant contended that the prior appearance of the appellant in the Children’s Court was, ‘hardly relevant’.  The offence the subject matter of that proceeding, however, was one of violence and the disposition by a Children’s Court, which concentrates upon rehabilitation having regard to the age of the offenders with whom it deals, does not necessarily reflect the gravity of the offending.

1. Counsel for the appellant relied upon seven decided cases in which sentences had been imposed for intentionally causing serious injury.  I accept for present purposes that the analysis demonstrates that the sentence imposed upon the appellant was comparatively stern.  I do not, however, accept that according to counsel’s written outline, the top end of the sentencing range open to the sentencing judge was less than four years’ imprisonment.  The circumstances of the cases cited

by counsel for the appellant were, of course, not on all fours with the circumstances of the present case.  General and specific deterrence and denunciation of the crime were important sentencing considerations here. 

1. In the light of the maximum sentence and the circumstances of the offence, I do not think that the mitigating factors upon which the appellant can rely demonstrate that the sentence was beyond that which a reasonable sentencing judge could impose.

1. I would dismiss the appeal.

WILLIAMS AJA:

1. I agree.

BUCHANAN JA:

1. The order of the Court is that the appeal is dismissed.

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