| 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…
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- AGLC
- O'Neal v The King [2024] VSCA 129
- Case
- [2024] VSCA 129
- Decision Date
CaseChat Overview and Summary
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.
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