McLeod v The Queen

[2013] VSCA 245

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0067

BRAEGHAN McLEOD	Applicant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN AP and OSBORN JA
WHERE HELD	MELBOURNE
DATE OF HEARING	On the papers
DATE OF JUDGMENT	11 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 245
JUDGMENT APPEALED FROM	DPP v McLeod & Anor (Unreported, County Court of Victoria, Judge Chettle, 9 April 2013)

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DETERMINED ON THE PAPERS –
JUDGMENT DELIVERED IN OPEN COURT

CRIMINAL LAW – Application for leave to appeal against sentence – Armed robbery – Sentenced to eight years’ imprisonment with a non-parole period of five years – Where some error in respect of applicant’s priors – Whether insufficient weight given to prospect of deportation – Whether principle of parity offended – Whether manifest excess – Application dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
No appearances by leave of the Court

BUCHANAN AP:

1. I agree with Osborn JA. 

OSBORN JA:

1. On 22 November 2012 Braeghan McLeod was convicted of armed robbery by a jury in the County Court.  On 9 April 2013 his Honour Judge Chettle sentenced McLeod to eight years’ imprisonment with a non-parole period of five years. 

1. The maximum penalty for armed robbery is 25 years’ imprisonment. 

1. McLeod now seeks leave to appeal on four grounds.  First, it is said his Honour made a material error in recording McLeod’s criminal history.  Second, it is said insufficient weight was given to the effect of the prospect of deportation upon McLeod.  Third, it is said the principle of parity was breached when regard is had to the sentence imposed on a co-offender.  Fourth, it is said the sentence was manifestly excessive.  I do not accept these grounds are reasonably arguable. 

The offending

1. On the 15 July 2010 McLeod and his co-accused, Ravenhorst, went to the home of a small-time drug dealer, Pulham, in Lilydale.  After discussion about a drug deal McLeod grabbed Pulham and put a knife to his throat demanding drugs.  Pulham pushed the knife away from his throat and as he struggled with McLeod Ravenhorst stabbed Pulham to the right side of the chest and then stabbed Pulham in the arm as Pulham fended off a further blow.  Pulham then agreed to get ‘speed’ for his assailants.  Ravenhorst escorted Pulham to his bedroom with a knife to Pulham’s back.  Pulham gave him a bag containing amphetamine.  Ravenhorst then stood over him asking whether that was all he had.  Both the assailants then left the premises.  In the course of the initial stabbing Pulham suffered an 8 centimetre deep wound to the muscle on the right side of the chest and a further wound to the left forearm.  Victim impact statements from Pulham and his mother, who was present in the house, confirm what might be inferred, namely that the robbery was terrifying and

has had lasting psychological impact. 

1. It may be observed that this was a joint criminal enterprise in the course of which both McLeod and Ravenhorst used knives.  Further, it is plain that Pulham was targeted at his home and deliberately overpowered and that the purpose of the robbery was to acquire illicit drugs. 

Personal circumstances

1. McLeod was born on 12 July 1990.  At the time of the offending he was 19 years old and at the time of sentence he was 22. 

1. He had some 77 prior convictions including 13 for armed robbery and three for attempted armed robbery.  The sentencing judge misstated his history in part by saying that McLeod had had six appearances before the Children’s Court when in fact he had had only four appearance between November 2007 and January 2009.  In my view, this error was immaterial.  His Honour elaborated the convictions which he regarded as most significant at [12]-[14] of his reasons.[1]  It is not disputed that McLeod had 13 convictions for armed robbery and three for attempted armed robbery.  In addition, he had convictions for assault, assault police, false imprisonment, recklessly cause injury (two), reckless conduct endangering serious injury, recklessly cause serious injury, and reckless conduct endangering life (two).  The sentencing judge was entirely correct to characterise McLeod as a ‘very violent and dangerous young man’.  That view was also consistent with the psychologist’s report before his Honour which confirmed McLeod suffers from ongoing anger problems. 

   [1]DPP v McLeod & Anor (Unreported, County Court of Victoria, Judge Chettle, 9 April 2013) (‘Reasons’).

1. The sentencing judge was also correct to specifically identify the fact of recurrent convictions in November 2007, June 2008 and January 2009 as significant and to point out the nature of the convictions on the last occasion, saying: 

On 12 January 2009, you were before the Melbourne Children's Court on theft of a motor vehicle, three charges, nine charges of armed robbery, two charges of attempted armed robbery, charges of recklessly cause serious injury, false imprisonment, recklessly causing injury, two further counts of armed robbery and another three charges of recklessly causing serious injury and were ordered to be detained in a Youth Justice Centre for a period of 12 months.[2]

[2]Reasons [14].

1. In my view, when regard is had to this record and the nature of the offending the penalty imposed cannot be regarded as manifestly excessive despite the further specific matters relating to the applicant personally which were agitated on his behalf and in particular the points raised by the other grounds of appeal. 

1. The offending raised substantial issues of protection of the community, general deterrence, specific deterrence and just punishment.  These factors fell to be considered in circumstances where the sentencing judge was correct to conclude that there were only guarded prospects of rehabilitation.  They outweighed the consideration of the applicant’s youth which might otherwise have required a lesser sentence. 

1. As the sentencing judge recognised the applicant’s prospects of rehabilitation fell to be considered against background circumstances of a dysfunctional and violent upbringing, limited education, recurrent substance abuse since an early age, limited employment and emigration from New Zealand.  On the other hand the applicant had been in a relationship since July 2010 and had a infant daughter providing some motivation for a changed way of life.  Mr Ball, a psychologist, diagnosed substance dependence, attention deficit hyperactivity disorder and long term depression.  The sentencing judge took account of all these matters. 

1. It is next submitted that his Honour failed to give proper weight to the hardship arising from the fact that the applicant faces deportation to New Zealand upon completion of his sentence.[3]  There is nothing in this point.  His Honour specifically took account of it.[4]  Moreover the applicant’s prior immigration history did not count in his favour for reasons explained by the sentencing judge. 

   [3]R v Guden (2010) 28 VR 288, [29].

   [4]Reasons [35]-[36].

1. It is further submitted that the sentence breached the principle of parity because Ravenhorst was sentenced to seven years’ imprisonment in respect of the armed robbery and six years for intentional cause serious injury, with a total effective sentence of nine years and a non-parole period of six years. 

1. Whilst it is true Ravenhorst fell to be sentenced for the additional offence involved in the attack on Pulham, his prior convictions were not of the order of seriousness of McLeod’s.  Accordingly, a somewhat lesser sentence for armed robbery was warranted.  This was particularly so when the most aggravating aspect of Ravenhorst’s conduct in the course of the robbery (namely the actual stabbing of Pulham) was the subject of independent penalty. 

1. In my view, the application for leave to appeal against sentence must be refused. 

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