McKay v The King (No 2)

Case [2023] VSCA 8


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0180
BOBBY MCKAY Appellant
v
THE KING [NO 2] Respondent

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JUDGES: KYROU and KENNEDY JJA
WHERE HELD: Melbourne
DATE OF HEARING: 25 January 2023
DATE OF JUDGMENT: 9 February 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 8
JUDGMENT APPEALED FROM: [2021] VCC 1782 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Twelve charges on indictment and 10 related summary charges involving driving and theft offences – Total effective sentence 5 years, 10 months and 60 days’ imprisonment – Non-parole period 4 years – Sentence of 3 years for aggravated reckless exposure of an emergency worker to risk by driving – Whether sentence manifestly excessive – Serious deprivation and social disadvantage – Appeal allowed – Appellant resentenced to 4 years, 10 months and 60 days’ imprisonment – Non-parole period 3 years, 2 months – Bugmy v The Queen (2013) 249 CLR 571, applied.

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Counsel

Appellant: Mr DA Dann KC with Mr T Battersby
Respondent: Ms RL Harper

Solicitors

Appellant: Melinda Walker, Criminal Law Solicitor
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
KENNEDY JA:

  1. On 2 August 2021, the appellant pleaded guilty in the County Court to 12 charges on indictment and 10 related summary charges. These charges involved a sequence of offences committed on 2 and 6 July 2020.

  2. On 12 November 2021, the appellant was relevantly sentenced as follows:

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Theft of motor vehicle 10 years 6 months 3 months
2 Dangerous driving while pursued by police 3 years 1 year 6 months
3 Theft from shop 10 years 60 days 14 days
4 Theft of motor vehicle 10 years 8 months 2 months
5 Damage emergency service vehicle by recklessly driving 5 years 1 year 4 months
6 Dangerous driving while pursued by police 3 years 1 year 6 months
7 Damage emergency service vehicle by recklessly driving 5 years 15 months 5 months
8 Theft from shop 10 years 60 days 14 days
9 Aggravated reckless exposure of emergency worker to risk by driving 10 years 3 years Base
10 Theft of motor vehicle 10 years 8 months 3 months
11 Reckless conduct endangering persons 5 years 12 months 4 months
12 Theft from shop 10 years 30 days 7 days

Related Summary Offence

4 Fail to stop vehicle on police direction 12 months 3 months 1 month
8 Fail to stop after accident 14 days 7 days 2 days
13 Unlicensed driving 6 months 30 days 7 days
14 Refuse preliminary breath test 12 months 30 days 7 days
15 Contravene conduct condition of bail 3 months 7 days None
16 Commit indictable offence whilst on bail 3 months 1 month None
29 Unlicensed driving 6 months 30 days 7 days
30 Contravene conduct condition of bail 3 months 7 days None
31 Commit indictable offence whilst on bail 3 months 30 days None
32 Fail to stop after accident 14 days

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AGLC
McKay v The King [No 2] [2023] VSCA 8
Case
[2023] VSCA 8
Decision Date

CaseChat Overview and Summary

In the case of McKay v The King (No 2), the appellant, Mr McKay, appealed against his sentence following his conviction on twelve charges on indictment and ten related summary charges involving driving and theft offences. The court's task was to determine whether the sentence imposed was manifestly excessive. The court of appeal was required to consider the total effective sentence of five years, ten months, and sixty days’ imprisonment, with a non-parole period of four years. The appellant's primary argument was that his sentence was excessively severe given his background of serious deprivation and social disadvantage, and the sentence of three years for the charge of aggravated reckless exposure of an emergency worker to risk by driving.

The court considered the principles articulated in Bugmy v The Queen (2013) 249 CLR 571, which emphasised the importance of considering the offender's background and the proportionality of the sentence. The court found that the total effective sentence was manifestly excessive when considering the appellant's background and the nature of the offences. The court allowed the appeal and resentenced the appellant to four years, ten months, and sixty days’ imprisonment, with a non-parole period of three years and two months. The court took into account the appellant's background and the proportionality of the sentence, ultimately determining that the resentence was more appropriate.

The court's decision in this case highlights the importance of considering an offender's background and the proportionality of the sentence when determining an appropriate punishment. The court's resentence in this case demonstrates a more appropriate balance between the need for punishment and the need to consider the offender's background. The final orders of the court were that the appellant's sentence be reduced to four years, ten months, and sixty days’ imprisonment, with a non-parole period of three years and two months.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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