McGuigan v The Queen - [2012] VSCA 121

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0035
LEE McGUIGAN	Appellant
v
THE QUEEN	Respondent

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JUDGES	REDLICH JA, COGHLAN and MACAULAY AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 June 2011
DATE OF JUDGMENT	13 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 121
JUDGMENT APPEALED FROM	DPP v McGuigan (Unreported, County Court of Victoria, Judge Duckett, 3 February 2010)

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CRIMINAL LAW – Sentencing – Youthful offender sentenced to 21 years and four months’ imprisonment – Armed robbery – Intentionally causing serious injury – Whether offences committed over short period compounded degree of criminality – Whether mitigating influence of youth extinguished because of seriousness of criminality – Early guilty pleas – Remorse and contrition – Realistic prospect of rehabilitation – Whether sentence manifestly excessive – Principle of totality applied – Azzopardi, Baltatzis & Gabriel v The Queen [2011] VSCA 372 applied – Appeal allowed – Re-sentenced to 16 years and six months with a non-parole period of 12 years and six months.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC with Mr G Meredith	Greg Thomas Barristers & Solicitors
For the Crown	Mr J D McArdle QC with Mr P Kidd	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I have had the advantage of reading in draft the reasons of Macaulay AJA and agree that the appeal should be allowed and the appellant re-sentenced as he proposes.

COGHLAN AJA:

I also have had the opportunity to read the draft reasons of Macaulay AJA and agree the appeal should be allowed and that the appellant be re-sentenced as his Honour proposes.

MACAULAY AJA:

The sole issue in this appeal is whether the sentence passed upon the appellant, Lee Anthony McGuigan by the County Court of Victoria on 3 February 2010 was manifestly excessive.[1] In a spree of offending over five nights spanning an eight day period, McGuigan, who was 19 years of age at the time, committed nine armed robberies and three attempted armed robberies, accompanied by six offences of intentionally causing serious injury and one of unlawful imprisonment. He was sentenced for the 19 resulting charges to a total effective sentence of 21 years and four months’ imprisonment with a non-parole period of 18 years.
[1]A further ground of breach of the parity principle was not argued.

This appeal was heard concurrently with the appeals in Azzopardi, Baltatzis &Gabriel v The Queen[2] because it was considered that this appeal raises the same or similar principles raised in those cases. That is, it raises questions whether the mitigating influence of youth is expunged because of the extent and seriousness of the offender’s criminality, and the application of a proper understanding of the principle of totality to the circumstances of this case.

[2][2011] VSCA 372 (‘Azzopardi’).

In these reasons there is no need to revisit the statement of principles set out on those questions in Azzopardi, but rather, to apply them.

Charges and sentences

McGuigan…

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 McGuigan v The Queen

Details

AGLC: McGuigan v The Queen [2012] VSCA 121
Case: [2012] VSCA 121
Decision Date: 13 June 2012

CaseChat Overview and Summary

The appellant, McGuigan, appealed against his sentence for armed robbery and causing serious injury. The case was heard by the Court of Appeal of the Supreme Court of Victoria. McGuigan had been sentenced to 21 years and four months’ imprisonment, with a non-parole period of 16 years and four months. The appeal focused on whether the sentence was manifestly excessive, taking into account the totality principle and mitigating factors such as youth, remorse, and the prospect of rehabilitation.

The primary legal issues before the court were whether the degree of criminality was sufficiently high to overshadow the mitigating influence of the appellant’s youth and whether the principle of totality warranted a reduction in the sentence. The court examined the nature of the offences, which were committed over a short period, and assessed the extent to which they compounded the degree of criminality. Additionally, the court considered the appellant’s early guilty pleas, expressions of remorse, and the realistic prospect of rehabilitation. The decision referenced the case of Azzopardi, Baltatzis & Gabriel v The Queen [2011] VSCA 372, which provided guidance on applying the principle of totality in sentencing.

The court found that while the offences were serious, the appellant’s youth and other mitigating factors should have been given more substantial weight. The principle of totality, which requires consideration of the overall sentence in relation to the totality of the offending, supported a reduction in the sentence. The appeal was allowed, and the sentence was reduced to 16 years and six months’ imprisonment, with a non-parole period of 12 years and six months. This decision balanced the severity of the crimes with the mitigating circumstances, ensuring that the sentence was fair and proportionate.

Orders