Monaghan v The King - [2022] VSCA 247

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0181

CHACE MONAGHAN	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH, T FORREST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2022
DATE OF JUDGMENT:	10 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 247
JUDGMENT APPEALED FROM:	[2021] VSC 494 (Judge Hassan)

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CRIMINAL LAW – Application for extension of time for leave to appeal against conviction and sentence – Applicant pleaded guilty to offences including recklessly causing injury, false imprisonment, reckless conduct endangering persons, reckless conduct endangering life, contravention of family violence intervention order, theft and various driving offences – Total effective sentence 6 years 4 months’ imprisonment – Non-parole period 4 years – Whether charges offended principle of duplicity – Whether charge under s 317AF Crimes Act 1958 deficient – Whether insufficient evidence to support charge 3 on indictment – Crown concession that insufficient evidence – Whether integrity of guilty plea affected – Weston (a pseudonym) v The Queen (2015) 48 VR 413, applied – Extension of time granted – Application for leave to appeal against conviction granted – Appeal allowed in part – Applicant resentenced to 5 years 7 months’ imprisonment – Non-parole period 3 years 6 months.

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Counsel
Applicant:		Mr P Kounnas
Respondent:		Mr R Gibson KC
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
T FORREST JA
KENNEDY JA:

1On 13 April 2021 the applicant pleaded guilty in the County Court to 13 charges (on indictment K12057519) relating to a series of offending which occurred between 23 July 2019 and 6 August 2019. He also pleaded guilty to 15 related summary offences.
2On 27 April 2021, the applicant was relevantly sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Recklessly cause injury between Numurkah and Shepparton on 23 July 2019[1]	5 years	10 months	2 months
2	False imprisonment between Numurkah and Rushworth on 23 July 2019[2]	10 years	20 months	4 months
3	Reckless conduct endangering persons between Numurkah and Shepparton on 23 July 2019[3]	5 years	18 months	3 months
4	Reckless conduct endangering persons at Shepparton on 23 July 2019[4]	5 years	12 months	2 months
5	Reckless conduct endangering life between Numurkah and Shepparton on 23 July 2019[5]	10 years	24 months	10 months
6	Contravene family violence intervention order between Numurkah and Rushworth on 23 July 2019[6]	5 years and/or 600 penalty units	10 months	Nil
7	Theft at Seymour on 23 July 2019[7]	10 years	3 months	1 month
8	Aggravated reckless exposure of an emergency worker to risk by driving at Clonbinane on 24 July 2019[8]	10 years	30 months	Base
9	Aggravated reckless exposure of an emergency worker to risk by driving at Clonbinane on 24 July 2019[9]	10 years	30 months	12 months
10	Reckless conduct endangering persons at Clonbinane on 24 July 2019[10]	5 years	18 months	3 months
11	Theft at Mickleham on 2 August 2019[11]	10 years	3 months

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 Monaghan v The King

Details

AGLC: Monaghan v The King [2022] VSCA 247
Case: [2022] VSCA 247
Decision Date: 10 November 2022

CaseChat Overview and Summary

The appellant in this matter, Monaghan, applied for an extension of time to appeal against his conviction and sentence, as well as for leave to appeal. Monaghan had entered a guilty plea to several charges, including recklessly causing injury, false imprisonment, reckless conduct endangering persons, reckless conduct endangering life, contravention of a family violence intervention order, theft, and various driving offences. The total effective sentence imposed was 6 years and 4 months’ imprisonment, with a non-parole period of 4 years. The court was tasked with determining whether the charges offended the principle of duplicity, whether the charge under section 317AF of the Crimes Act 1958 was deficient, and whether there was sufficient evidence to support the charge 3 on the indictment. Additionally, the court had to consider whether the integrity of Monaghan’s guilty plea was affected.

The court addressed the principle of duplicity, finding that the charges did not offend this principle. In relation to the charge under section 317AF of the Crimes Act 1958, the court concluded that it was not deficient. Regarding the sufficiency of evidence for charge 3 on the indictment, the Crown conceded that the evidence was insufficient. The court examined the effect of this concession on the integrity of Monaghan's guilty plea, applying the principles from Weston (a pseudonym) v The Queen (2015) 48 VR 413. The court concluded that the concession did not undermine the integrity of the guilty plea.

As a result of its findings, the court granted an extension of time for the appeal and also granted leave to appeal against the conviction. The appeal was allowed in part, leading to a resentencing of Monaghan to 5 years and 7 months’ imprisonment, with a non-parole period of 3 years and 6 months. This decision effectively altered Monaghan's original sentence and non-parole period, reflecting the court's findings on the legal issues presented.

Orders