JUDGES:	REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2014
DATE OF JUDGMENT:	24 July 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 156
JUDGMENT APPEALED FROM:	R v McPhee [2013] VSC 581 (Curtain J)

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CRIMINAL LAW – Sentence – Manifest excess – Spousal murder with substantial mitigating factors and absence of aggravating factors – Felicite v The Queen (2011) 211 A Crim R 266, discussed – Sentence of 20 years’ imprisonment with a non-parole period of 16 years – Question whether the sentence was ‘reasonably open’ – ‘Reasonable judge’ test, disapproved – Director of Public Prosecutions (Vic) v Karazisis (2010) 206 A Crim R 14, discussed – Offence not only fell within the lowest category of seriousness of the offence of murder, but also at the lower end of that category – Re-sentence to 18 years’ imprisonment with a non-parole period of 13 years – Leave to appeal granted and appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P McMahon	Leanne Warren and Associates
For the Crown	Mr T Gyorffy QC with Mr J Lewis	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
PRIEST JA:

On 19 July 2013, the applicant pleaded guilty to one charge of murder. Following a plea in mitigation, he was sentenced to a total effective sentence of 20 years’ imprisonment with a non-parole period of 16 years. Pursuant to s 6AAA of the Sentencing Act1991 (Vic), the sentencing judge made a declaration that, if not for the plea of guilty, she would have sentenced the applicant to 22 years’ imprisonment a non-parole period of 18 years.

On 21 May 2014, leave to appeal against his sentence was refused by a judge of this Court. The applicant has elected, pursuant to s 315 of the Criminal Procedure Act2009 (Vic), to have his application determined by this Court. In the event that leave is granted, the parties wish this Court as presently constituted to determine the appeal.

The applicant renews his application for leave to appeal on one ground:

1.The head sentence imposed and non-parole period fixed are manifestly excessive.

Particulars
The sentences imposed reveal that the learned judge failed to give sufficient weight to the Applicant’s matters in mitigation, and in particular (a) his admissions and cooperation with police; (b) his unblemished record and productive life; (c) the absence of any premeditation, and (d) his plea of guilty.

The applicant has filed additional submissions addressing the reasons given for the initial refusal of leave.

Circumstances of the offending

The circumstances of the offending may be summarised as follows:

The applicant met the deceased, Cathy McPhee, in 2005. They were married on 30 October 2008 and lived together in Mildura. She had four adult children from her previous marriage and the applicant has two adult children from his previous marriage. Both the applicant and the deceased worked in…

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 McPhee v The Queen

Details

AGLC: McPhee v The Queen [2014] VSCA 156
Case: [2014] VSCA 156
Decision Date: 24 July 2014

CaseChat Overview and Summary

The case of McPhee v The Queen involved the sentencing of the appellant for the murder of his wife. The appellant was convicted of murdering his wife, and the trial judge sentenced him to 20 years' imprisonment with a non-parole period of 16 years. The central issue before the court was whether the original sentence was manifestly excessive and therefore not reasonably open to the trial judge. The court was also required to determine whether the re-sentencing was appropriate under the circumstances.

The court reviewed the legal principles surrounding the assessment of manifest excess in sentencing, particularly in cases of spousal murder with substantial mitigating factors and an absence of aggravating factors. The court noted the importance of considering the seriousness of the offence and the relevant mitigating and aggravating factors. It examined the precedent set by Felicite v The Queen and Director of Public Prosecutions (Vic) v Karazisis, ultimately determining that the 'reasonable judge' test was not the appropriate standard for assessing manifest excess. The court found that the original sentence was indeed manifestly excessive, given the particular circumstances of the case, and that the trial judge had not adequately considered the seriousness of the offence and the mitigating factors.

In re-sentencing the appellant, the court determined that a sentence of 18 years' imprisonment with a non-parole period of 13 years was appropriate. The court considered the mitigating factors present in the case, including the appellant's guilty plea, his remorse, and the impact of the murder on his family. The court also considered the absence of aggravating factors, such as premeditation or cruelty. The court concluded that the re-sentence was more commensurate with the circumstances of the case and the principles of sentencing for spousal murder.

The court granted the appellant leave to appeal and allowed the appeal, ordering a re-sentencing to 18 years' imprisonment with a non-parole period of 13 years. This decision reinforces the importance of carefully considering the specific circumstances of each case when sentencing for spousal murder and highlights the need for courts to apply the correct legal principles in assessing manifest excess.

Orders