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McLean v The Queen

McLean v The Queen

Case [2018] VSCA 209 24 August 2018

Sentencing

Non-Parole Period

Leave to Appeal

Seriousness of Offending

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0029

JOSHUA MCLEAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2018
DATE OF JUDGMENT:	24 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 209
JUDGMENT APPEALED FROM:	DPP v McLean (Unreported, County Court of Victoria, Judge Lyon, 2 February 2018)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Non-Parole period fixed 80 per cent of head sentence – No ‘usual’ non-parole period – Seriousness of offending warranted the non-parole period fixed – Leave granted, appeal dismissed – Power v The Queen (1974) 131 CLR 623, R v Krasnov (1995) 125 FLR 120 applied – DPP v Josefski (2005) 13 VR 85, Kumova v The Queen (2012) 37 VR 538, Hili v The Queen (2010) 242 CLR 520 considered – Sentencing Act 1991 (Vic) s 11(3).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Papa Hughes Lawyers
For the Respondent	Mr B L Sonnet with Ms R Harper	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
KYROU JA:

On 26 February 2017 the applicant and his ex-partner had an argument by text message which culminated in the applicant saying to her by text: ‘Addie won’t had no mother from today’ and ‘I’ll have the last laugh I promise you that’. The reference to ‘Addie’ was to their six month old daughter.

At approximately 2:30 pm that same day the applicant sped into the driveway of his ex-partner’s home and got out of his car holding two beer bottles. He smashed the window of the main bedroom and climbed through, cutting his arms and hands in the process. Once inside he damaged windows, the air conditioner and a television. While inside he was yelling: ‘Where are you? Come out you bitch’. The ex-partner had secreted herself in the laundry with their baby where she managed to summon help using her mobile phone. Meanwhile, the applicant turned on all the gas stove hobs and then left. A neighbour came in and took the applicant’s ex-partner to her house. The ex-partner’s father then arrived with the applicant’s mother. The ex-partner’s father turned off the gas.

When police first attempted to arrest the applicant on 27 February 2017, he fled. On 28 February 2017 police located the applicant. He resisted their attempts to arrest him. They used capsicum spray to subdue him. He was then arrested and taken to a police station where he was interviewed. He was remanded in custody that day. Amongst other things, in the course of the interview the applicant maintained that he had turned the gas on with the intention of killing himself but that he had then ‘remembered something’ and left the house, forgetting to turn off the gas. He maintained that he did not remember damaging any property once inside and that when he had turned the gas on he did not think that his ex-partner…

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 Queen

Details

AGLC: McLean v The Queen [2018] VSCA 209
Case: [2018] VSCA 209
Decision Date: 24 August 2018

CaseChat Overview and Summary

In the matter of McLean v The Queen, the appellant, McLean, applied for leave to appeal against the sentence imposed by the Court of Appeal. The dispute arose from the appellant's conviction and sentencing for serious criminal offences, with the Court of Appeal having previously fixed the non-parole period at 80 per cent of the head sentence. The High Court of Australia was tasked with determining whether the appellant was entitled to leave to appeal against the sentence.

The primary legal issue before the court was whether the non-parole period set by the Court of Appeal was excessive, given that it did not correspond to the 'usual' non-parole period. The court considered whether the seriousness of the offending warranted the imposition of an 80 per cent non-parole period, and whether the principles set out in Power v The Queen and R v Krasnov applied to the present case. The court also examined relevant case law and statutory provisions, including the Sentencing Act 1991 (Vic) s 11(3), to assist in its determination.

The court found that the seriousness of the offending did warrant the imposition of an 80 per cent non-parole period. The court held that the appellant had not demonstrated that the sentence imposed was manifestly excessive or disproportionate, and that the Court of Appeal had appropriately exercised its discretion in fixing the non-parole period. The court also noted that the principles set out in Power v The Queen and R v Krasnov applied to the present case, and that the Court of Appeal had correctly considered these principles in imposing the sentence. Accordingly, the court granted leave to appeal but dismissed the appeal.

No further orders were made by the court.

Orders