SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
McLeod v The Queen
Citation:
[2018] ACTCA 59
Hearing Date:
12 November 2018
DecisionDate:
4 December 2018
Before:
Elkaim, Mossop JJ and Robinson AJ
Decision:
Appeal dismissed
Catchwords:
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – whether the primary judge erred in treating the failure to repay the stolen money as an aggravating factor in the assessment of objective seriousness
On 26 March 2018, Burns J convicted the appellant on the four counts of theft in an indictment dated 29 May 2017.
His Honour imposed the following sentences for the respective counts:
Count 1: Two years and 10 months’ imprisonment, commencing on 26 March 2018 and expiring on 25 January 2021.
Count 2: Two years and six months’ imprisonment, commencing on 26 January 2019 and expiring on 25 July 2021.
Count 3: Three years and three months’ imprisonment, commencing on 26 October 2022 and expiring on 25 January 2026.
Count 4: Four years and six months’ imprisonment, commencing on 26 March 2021 and expiring on 25 September 2025.
The appellant was sentenced to a total of seven years and 10 months’ imprisonment commencing on 26 March 2018. His Honour set a non-parole period of four years, expiring on 25 March 2022.
The Notice of Appeal, dated 23 April 2018, lists the following four grounds of appeal:
(a)The sentence is manifestly excessive, either as to the total term, or non-parole period, or both;
(b)The sentencing judge erred in treating as an aggravating factor the fact that none of the stolen monies had been repaid;
(c)His Honour also took into account a matter he was not permitted to when he referred to discussions over the telephone between the Appellant and his mother that were intercepted by police when no charges arose from same;
(d)In the alternative to (c) above, his Honour failed to give adequate reasons as to how he took this matter into account.
The appellant abandoned three of the grounds leaving only ground (b) that “the sentencing judge erred in treating as an aggravating factor the fact that none of the stolen monies had been repaid”.
The failure to repay the monies was taken…
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.
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AGLC
McLeod v The Queen [2018] ACTCA 59
Case
[2018] ACTCA 59
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal against sentence brought by the appellant, McLeod, against the respondent, The Queen. The appeal was heard by Elkaim, Mossop JJ and Robinson AJ.
The central legal issue before the Court was whether the primary judge had erred in treating the appellant's failure to repay stolen money as an aggravating factor when assessing the objective seriousness of the offence.
The Court reasoned that the failure to repay stolen property is a relevant consideration in assessing the objective seriousness of an offence, particularly where the offender has had the opportunity to make restitution. This is because such a failure can indicate a lack of remorse or a continued disregard for the victim's loss. The Court found no error in the primary judge's approach and upheld the sentence imposed.