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McGrath v The Queen

McGrath v The Queen

Case [2018] VSCA 134 25 May 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0083

CHRISTOPHER McGRATH

THE QUEEN

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JUDGES:	OSBORN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2018
DATE OF JUDGMENT:	25 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 134
JUDGMENT APPEALED FROM:	R v McGrath (Unreported, County Court of Victoria, Judge Chettle, 4 April 2017)

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CRIMINAL LAW – Appeal against sentence – Culpable driving causing death – Causing serious injury negligently – Appellant intoxicated at time of offending – Total effective sentence eight years and nine months’ imprisonment with a non-parole period of six years – Whether sentencing hearing miscarried because judge refused application to adjourn to obtain comprehensive neuropsychological testing – Procedural fairness required adjournment – Need for just punishment, denunciation, general deterrence, specific deterrence and protection of community – No lesser sentence imposed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Smallwood with Mr J Connolly	Grigor Lawyers
For the Respondent	Mr B Sonnet	Mr John Cain, Solicitor for Public Prosecutions

OSBORN JA
PRIEST JA:

On 3 April 2017, the appellant appeared before his Honour Judge Chettle in the County Court at Wodonga for the purposes of a plea hearing with respect to charges of culpable driving and causing serious injury negligently.

On 4 April 2017, the appellant was as sentenced as follows:

Charge	Offence	Maximum Penalty	Sentence	Cumulation
1	Culpable driving	20 years	7 years 6 months	Base
2	Causing serious injury negligently	10 years	2 years 6 months	1 year 3 months
Total Effective Sentence			8 years 9 months’ imprisonment
Non-Parole Period Fixed			6 years’ imprisonment
Pre-Sentence Detention			3 days
6AAA Statement			11 years’ imprisonment, with a non-parole period of 8 years 3 months
Other Orders			Licence cancelled and disqualified from driving for 10 years; forensic sample order made

On 16 November 2017, an application for leave to appeal was granted by Beach JA on the following grounds:

Ground 1: fresh evidence in the form of a neuropsychological report authored by Martin Jackson dated 8 September 2017, illuminates the relevance of the applicant’s cognitive functioning to the sentencing task.[1]
Ground 2: the sentencing discretion miscarried as a result of the sentencing judge having refused the applicant’s application to adjourn the plea hearing.[2]

[1]Particulars omitted.

[2]Particulars omitted.

In our opinion, the sentencing hearing in this matter miscarried because the sentencing judge refused the appellant’s application to adjourn it in circumstances where procedural fairness required an adjournment.

In particular, the appellant’s counsel sought an adjournment on the basis that comprehensive neuropsychological testing of the appellant was relevant to the sentencing task. The judge refused that request and did so in part on the basis that such testing would delay finalisation of the matter in circumstances where he was shortly to retire.

The judge postulated that any potential prejudice to the appellant could be avoided by assuming that his cognitive function was at the lower level of average functioning. Subsequently he sentenced the appellant accepting the view of…

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 McGrath v The Queen

Details

AGLC: McGrath v The Queen [2018] VSCA 134
Case: [2018] VSCA 134
Decision Date: 25 May 2018

CaseChat Overview and Summary

The appeal in McGrath v The Queen concerns the sentence imposed on the appellant for culpable driving causing death and causing serious injury negligently. The appellant was found to have been intoxicated at the time of the offending. The appellant’s total effective sentence was eight years and nine months’ imprisonment with a non-parole period of six years. The appellant sought to appeal against the sentence on the basis that the sentencing hearing miscarried because the judge refused an application to adjourn to obtain comprehensive neuropsychological testing.

The central legal issue in the appeal was whether the refusal to adjourn the sentencing hearing to allow for comprehensive neuropsychological testing constituted a miscarriage of justice. The appellant argued that procedural fairness required the adjournment to ensure the court had a complete understanding of the appellant’s psychological condition and its impact on his offending behaviour. The appellant submitted that this was necessary to determine an appropriate sentence that balanced the principles of just punishment, denunciation, general deterrence, specific deterrence, and the protection of the community. The Crown opposed the appeal, asserting that the trial judge had already received substantial evidence regarding the appellant’s psychological state and that any further testing would not have altered the sentence imposed.

The court considered the principles of sentencing and the need for procedural fairness. It held that while it was important for the court to have a comprehensive understanding of the offender’s circumstances, the trial judge had already been provided with extensive evidence, including expert psychiatric evidence, which was sufficient to inform the sentencing decision. The court found that the refusal to adjourn did not result in a miscarriage of justice as the sentence imposed reflected the gravity of the offending and appropriately balanced the relevant sentencing principles. The court concluded that the appellant had not demonstrated that a different sentence would have been imposed had the adjournment been granted. Accordingly, the appeal against sentence was dismissed.

Orders