McLean v The King - [2023] VSCA 6

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0034

TYRAN MCLEAN	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2023
DATE OF JUDGMENT:	3 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 6
JUDGMENT APPEALED FROM:	DPP v McLean (County Court of Victoria, Judge Dalziel, 4 March 2022)

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CRIMINAL LAW – Leave to appeal – Sentence – Sentence for recklessly causing serious injury, among other offences – Whether open to find injury was other than at lower end of the spectrum of serious injury – Assessment of seriousness of injury an evaluative judgment – Error not established.

CRIMINAL LAW – Leave to appeal – Sentence – Manifest excess – Whether judge had insufficient regard for mitigatory factor of applicant’s youth when sentencing – No error in finding youth carries less weight than if applicant first time offender or offending less serious – Leave to appeal refused.

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Counsel
Applicant:		Mr J Barreiro
Respondent:		Ms RL Harper and Ms R Barrett
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA:

The applicant, who is 22 years of age, was sentenced by a judge of the County Court to a total effective sentence of 6 years and 6 months’ imprisonment. He seeks leave to appeal his sentence.
The applicant came to be sentenced on his plea of guilty to charges that were contained on two indictments. The first indictment contained a single charge of recklessly causing serious injury and related to an assault that occurred outside a licensed premises in the early hours of 26 September 2019. The second indictment contained a number of offences committed in 2021, when the applicant was on bail for the 2019 offence, involving trafficking in and possession of a drug of dependence, armed robbery, intentionally causing injury, committing an indictable offence on bail, contravening a conduct condition of bail and unlawful assault.
The sentence imposed by the judge was structured as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment K12569629.1
1	Recklessly Causing Serious Injury	15 years	5 years	Base
Indictment M10680285
1	Trafficking in a drug of dependence	15 years	3 years	1 month
2	Possession of a drug of dependence	1 year	1 month	Nil
3	Armed robbery	25 years	3 years	6 months
4	Intentionally causing injury	10 years	3 years	9 months
Summary offence 8	Committing an indictable offence on bail	30 PU or 3 months	2 months	1 month
Summary offence 9	Contravening a conduct condition of bail	30 PU or 3 months	2 months	Nil
Summary offence 12	Unlawful assault	15 PU or 3 months	2 months	1 month
Total Effective Sentence:		6 years and 6 months
Non-Parole Period:		4 years
Section 6AAA Statement:		Total Effective Sentence 8 years and 6 months Non Parole-Period 5 years

The 2019 incident

At about 1:00 am on 26 September 2019, the victim who was 20 years of age…

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 McLean v The King

Details

AGLC: McLean v The King [2023] VSCA 6
Case: [2023] VSCA 6
Decision Date: 3 February 2023

CaseChat Overview and Summary

McLean sought leave to appeal against his sentence following a conviction for recklessly causing serious injury, among other offences. The application was heard in the High Court of Australia. The central issue before the court was whether the trial judge erred in the assessment of the seriousness of the injury caused and whether the sentence was a manifest excess due to insufficient regard for the defendant's youth.

The court examined whether the trial judge's assessment of the seriousness of the injury was an evaluative judgment, which is generally non-appealable unless an error is clearly established. It found that the assessment of the seriousness of injury is inherently subjective and evaluative, thus not constituting a clear error warranting appeal. The court also considered whether the judge had insufficient regard for the defendant’s youth. It noted that while youth is a mitigating factor, the judge appropriately balanced it against the severity of the offence, concluding that youth carries less weight if the offending is severe or if the defendant has a prior criminal record. The court found no error in the judge's consideration of these factors.

The High Court held that the trial judge's assessment of the seriousness of the injury and the weighing of mitigatory factors were within the evaluative discretion of the trial court. Consequently, the application for leave to appeal was refused.

Orders