McVittie v The Queen - [2015] NSWCCA 92

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McVittie v R [2015] NSWCCA 92
Hearing dates: 1 May 2015
Decision date: 13 May 2015
Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Wilson J at [51]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – wound with intent to cause grievous bodily harm – aggravated kidnapping – where applicant seeks to have fresh evidence considered on appeal – appellate court’s jurisdiction to review findings of fact – open to trial judge to find limited prospects of rehabilitation on evidence available at sentence hearing – no error established permitting fresh evidence to be considered – no substantial miscarriage of justice
Legislation Cited: Crimes Act 1900 (NSW) ss33, 86(2)
Crimes (Sentencing Procedure) Act 1999 (NSW)
s 21A(3)
Criminal Appeal Act 1912 (NSW) s 6(3)
Cases Cited: AB v R [2014] NSWCCA 339
Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297
Butters v R [2010] NSWCCA 1
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Lacey v Attorney General (Qld) [2011] HCA 10; 242 CLR 573
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Fordham (1997) 98 A Crim R 359
R v Goodwin (1990) 51 A Crim R 328
R v Kyriakou (1987) 29 A Crim R 50
R v O’Donoghue (1988) 34 A Crim R 397
Category: Principal judgment
Parties: Sean James McVittie (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant self-represented
Ms T Smith (Crown)
Solicitors:
Solicitor for Public Prosecutions

File Number(s): 2013/36443
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

4 December 2013

Before:

Hosking ADCJ

File Number(s):

2013/36443

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
R A HULME J: Sean James McVittie (“the applicant”) applies for leave to appeal in respect of a sentence imposed upon him by Hosking ADCJ in the Sydney District Court on 4 December 2013 for an offence of wounding with intent to cause grievous bodily harm. In being sentenced for that offence he asked that his guilt in respect of an offence of aggravated kidnapping be taken into account.
The maximum penalty for an offence of wounding with intent to cause grievous bodily harm is imprisonment for 25 years: s 33 of the Crimes Act 1900 (NSW). There is also prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW) a standard non-parole period of 7 years. Aggravated kidnapping has a maximum penalty of imprisonment for 20 years: s 86(2) of the Crimes Act.
After allowing a discount of 25 per cent for the utilitarian benefit of the applicant’s plea of guilty, the learned sentencing judge imposed a sentence of 5 years 6 months with a non-parole period of 3 years 4 months dating from 5 February 2013.

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 McVittie v The Queen

Details

AGLC: McVittie v The Queen [2015] NSWCCA 92
Case: [2015] NSWCCA 92
Decision Date: 13 May 2015

CaseChat Overview and Summary

The matter before the court was an appeal against the sentence of the applicant, McVittie, who was convicted of wounding with intent to cause grievous bodily harm and aggravated kidnapping. The applicant sought to have fresh evidence considered on appeal, which the trial judge had refused. The appeal was heard in the High Court of Australia.

The legal issue that the court was required to decide was whether the trial judge had erred in refusing to consider fresh evidence on appeal. The applicant argued that the trial judge should have considered the fresh evidence as it was relevant to the sentence and could have impacted the outcome. The applicant also argued that the trial judge had erred in finding limited prospects of rehabilitation on the evidence available at the sentence hearing.

The court held that the trial judge’s decision to refuse to consider fresh evidence was not an error of law. The court noted that the trial judge was entitled to find limited prospects of rehabilitation on the evidence available at the sentence hearing. The court held that there was no error established permitting fresh evidence to be considered. The court also held that there was no substantial miscarriage of justice as the sentence imposed was within the range of appropriate sentences for the offences committed.

The appeal was dismissed, and the original sentence was upheld. The court held that the trial judge had not erred in refusing to consider fresh evidence on appeal and that there was no substantial miscarriage of justice.

Orders