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McGrath v The Queen

McGrath v The Queen

Case [2015] VSCA 176 26 June 2015

Appeal

Sentencing

Manifestly Excessive Sentence

Community Correction Order

Principle of Parsimony

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0209

SEAN ROBERT McGRATH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 April 2015
DATE OF JUDGMENT:	26 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 176
JUDGMENT APPEALED FROM:	DPP v McGrath (Unreported, County Court, Judge Gamble, 10 September 2014)

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CRIMINAL LAW – Appeal – Sentence – Cultivate commercial quantity of cannabis (8.5 CQ) – Sentence 2 years and 6 months – Whether manifestly excessive – Whether judge erred in failing to consider community correction order (CCO) – Principle of parsimony – Sentence imposed before publication of CCO guideline judgment in Boulton v The Queen [2014] VSCA 342 – Whether judge failed to apply correct principles – No error – Sentence within range – Leave to appeal refused – Sentencing Act 1991 s 5(3), 5(4), 5(4C), pt 3A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr K E McDonald	Croxford Partners
For the Crown	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
KYROU JA:

Summary

In December 2014, the Court published its guideline judgment in Boulton v The Queen.[1] The Director of Public Prosecutions (amongst others) had submitted that the community correction order (‘CCO’) was being under-utilised as a sentencing option and that guidance was required to ensure that the CCO fulfilled its potential.
[1][2014] VSCA 342 (‘Boulton’).

The Court sought to assist sentencing courts by highlighting the scope afforded by the CCO to achieve the sentencing purposes of punishment, deterrence, community protection and rehabilitation, and to do so in cases which might previously have attracted a sentence of imprisonment. The Court said:

The CCO is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. The CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.[2]

[2]Ibid [2].

The guideline judgment did not, of course, change the law. The CCO has been available since January 2012 and, as these reasons will show, was being used by sentencing judges well before the decision in Boulton was handed down. And the principle of parsimony continues to operate as it always has. A custodial sentence may only be imposed if the judge has concluded that the relevant sentencing purposes cannot be served by a non-custodial order (including a CCO with conditions).

The present applicant contended that, because the sentencing judge had not been guided by the Court’s reasoning in Boulton, the decision to impose a custodial sentence was infected by specific error. That reasoning, it was said, would have demonstrated that this case was ‘CCO territory’.

For reasons which follow, that contention must be rejected. The judge was well aware of the CCO as an option, and correctly applied the principle of parsimony in concluding that the…

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 [2015] VSCA 176
Case: [2015] VSCA 176
Decision Date: 26 June 2015

CaseChat Overview and Summary

The matter of McGrath v The Queen involved an appeal against the sentence imposed on the respondent, who was found guilty of cultivating a commercial quantity of cannabis. The respondent had been sentenced to two years and six months imprisonment. The High Court of Australia was tasked with determining whether the sentence was manifestly excessive and if the trial judge erred by not considering a community correction order (CCO) as a sentencing option. This involved examining the principles of parsimony and the appropriate application of sentencing guidelines.

The legal issues at hand included whether the sentence imposed was manifestly excessive and if the trial judge failed to consider a CCO as a viable alternative to imprisonment. Additionally, the court had to assess whether the trial judge had correctly applied the relevant sentencing principles, particularly in light of the fact that the sentence was handed down prior to the publication of the CCO guideline judgment in Boulton v The Queen. The court considered whether the sentence fell within the appropriate range and if the principles of parsimony and the appropriate consideration of sentencing options were adhered to.

In examining the trial judge’s approach, the High Court found that the sentence was not manifestly excessive and that the judge had correctly applied the relevant sentencing principles. The court acknowledged that the sentence was imposed before the Boulton judgment but determined that it still fell within the appropriate range for the offence. The court also held that while the judge did not explicitly consider a CCO, the overall sentence was fair and just, and there was no error in the judge’s approach. Consequently, the appeal was dismissed, and leave to appeal was refused.

The final orders of the court were to dismiss the appeal and refuse leave to appeal. The High Court upheld the original sentence, finding no error in the trial judge’s application of sentencing principles or consideration of the appropriate range for the offence.

Orders