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McKay v The King (No 2)

McKay v The King (No 2)

Case [2023] VSCA 8 9 February 2023

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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:

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.
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

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 McKay v The King (No 2)

Details

AGLC: McKay v The King [No 2] [2023] VSCA 8
Case: [2023] VSCA 8
Decision Date: 9 February 2023

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