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O'Neal v The King

O'Neal v The King

Case [2024] VSCA 129 13 June 2024

Appeal

Sentencing

Perverting the Course of Justice

Worboyes Discount

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0240

MARCUS O’NEAL	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL, LYONS and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2024
DATE OF JUDGMENT:	13 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 129
JUDGMENT APPEALED FROM:	[2023] VCC 2140 (Judge Syme)

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CRIMINAL LAW – Appeal – Sentence – Perverting the course of justice and committing indictable offence on bail – Applicant sentenced to 11 months’ imprisonment with a 24 month Community Correction Order (‘CCO’) – Offending conduct in order to avoid conviction on charge of dealing with property suspected to be the proceeds of a crime – Whether sentencing judge failed to take into account fact that applicant had no prior convictions – Applicant indicated intention to plead guilty on 10 November 2022 but no formal plea entered until 31 October 2023 – Whether judge erred in failing to apply Worboyes discount given intention to plead guilty in November 2022 – Time of intention to plead guilty relevant to Worboyes discount – Leave granted and appeal allowed – Applicant resentenced to 8 months’ imprisonment with a 12 month CCO (involving treatment and rehabilitation conditions).

Sentencing Act 1991, s 5(2)(e).

Worboyes v The Queen (2021) 96 MVR 344, applied; Cameron v The Queen (2002) 209 CLR 339, considered.

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Counsel
Applicant:		Mr D Dann KC
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Chris McLennan & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
LYONS JA
T FORREST JA:

The applicant pleaded guilty to one charge of attempting to pervert the course of justice and the related summary offence (‘RSO’) of committing an indictable offence whilst on bail.
Following this plea on 31 October 2023, the applicant was sentenced on 20 November 2023 as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
2	Attempting to pervert the course of justice[1]	25 years’ imprisonment	10 months’ imprisonment	Base
4 – RSO	Commit indictable offence whilst on bail[2]	3 months’ imprisonment	2 months’ imprisonment	1 month
Total Effective Sentence:		11 months’ imprisonment with a 24 month Community Correction Order (‘CCO’)
Non-Parole Period:		N/A
Section 6AAA Statement:		2 years and 6 months’ imprisonment with a non-parole period of 18 months

[1]Contrary to Common Law.

[2]Contrary to s 30B of the Bail Act 1977.

The applicant seeks leave to appeal against his sentence on the following proposed grounds:
1.The learned sentencing judge erred in failing to recognise that the applicant’s guilty pleas were entitled to an additional sentencing discount, on account of the fact that they were entered at a time when the criminal justice system was still trying to recover from the impact of the COVID-19 pandemic.
2.The learned sentencing judge erred in her approach to the applicant’s ‘other offending’.
3.The total effective sentence and individual sentence are manifestly excessive.
For the reasons that follow, we would grant leave to appeal on proposed grounds 1 and 2 and allow the appeal. As a result of…

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 O'Neal v The King

Details

AGLC: O'Neal v The King [2024] VSCA 129
Case: [2024] VSCA 129
Decision Date: 13 June 2024

CaseChat Overview and Summary

In the matter of O'Neal versus The King, the appellant was convicted for perverting the course of justice and committing an indictable offence while on bail. The case was heard in the Supreme Court of Victoria, where the appellant sought to appeal his sentence. The appellant was sentenced to 11 months' imprisonment and a 24-month Community Correction Order (CCO). The appellant argued that the sentencing judge did not properly consider his lack of prior convictions and the fact that he indicated his intention to plead guilty in November 2022, but did not enter a formal plea until October 2023. The appellant further argued that the sentencing judge erred by not applying a discount under the Worboyes principle due to his early indication of a guilty plea.

The court was required to determine whether the sentencing judge failed to take into account the appellant's lack of prior convictions and whether the judge erred in not applying the Worboyes discount. The court also had to consider the relevance of the timing of the appellant's indication of a guilty plea in relation to the Worboyes discount. The appeal hinged on whether the sentencing judge's failure to consider these factors constituted a significant error that warranted a resentencing.

The court found that the sentencing judge did not adequately consider the appellant's lack of prior convictions and that the timing of the indication of a guilty plea was indeed relevant to the Worboyes discount. The court held that these omissions constituted a significant error in the sentencing process. Consequently, the appeal was allowed, and the appellant was resentenced to 8 months' imprisonment with a 12-month CCO, which included treatment and rehabilitation conditions. The court's decision was influenced by the principles outlined in Worboyes v The Queen and Cameron v The Queen, with the former providing the basis for the discount and the latter offering additional context regarding the principles of sentencing.

Orders