Patrick McMillan v The Queen - [2020] VSCA 189

SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0159

PATRICK McMILLAN Applicant

v

THE QUEEN

Respondent

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JUDGES: PRIEST, KYROU and T FORREST JJA

WHERE HELD: MELBOURNE

DATE OF HEARING: 22 July 2020

DATE OF JUDGMENT: 27 July 2020

MEDIUM NEUTRAL CITATION: [2020] VSCA 189

JUDGMENT APPEALED FROM: DPP v McMillan [2019] VCC 1115 (Judge Lyon)
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CRIMINAL LAW — Appeal — Sentence — Armed robbery, aggravated carjacking, reckless conduct endangering serious injury, being a prohibited person in possession of a firearm and imitation firearm, and associated charges — Total effective sentence of 14 years and 11 months’ imprisonment with non-parole period of 10 years and 4 months — Error as to maximum penalty for reckless endangerment — Parity — Totality — Whether orders for cumulation infringe totality — Whether double punishment on firearm and imitation firearm charges — Appeal allowed — Resentenced to a total effective sentence of 13 years and six months’ imprisonment with non-parole period of 9 years.
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APPEARANCES: Counsel Solicitors

For the Applicant Mr P Smallwood and
Mr J Connolly James Dowsley & Associates

For the Respondent Mr J Dickie Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA
KYROU JA
T FORREST JA:
Charges, sentences and grounds of appeal

1 On 9 April 2019, the applicant pleaded guilty before a judge in the County Court to armed robbery[1] (four charges — charges 2, 3, 4 and 5); aggravated carjacking[2] (two charges — charges 10 and 12); reckless conduct endangering serious injury[3] (one charge — charge 13); common assault[4] (one charge — charge 9); being a prohibited person in possession of a firearm[5] (one charge — charges 6); being a prohibited person in possession of an imitation firearm[6] (one charge — charge 8); theft[7] (two charges — charges 1 and 11); and handling stolen goods[8] (one charge — charge 7). He also pleaded guilty to summary charges of unlicensed driving[9] (two charges — summary charges 14 and 18), fraudulently using registration plates[10] (summary charge 19) and dealing with property suspected to be the proceeds of crime[11] (summary charge 20).
[1]Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 79A(1). The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 23. The maximum penalty is 5 years’ imprisonment.
[4]Common assault is an offence at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 5 years’ imprisonment.
[5]Firearms Act 1996, s 5(1). The maximum penalty is 10 years’ imprisonment.
[6]Control of Weapons Act 1990, s 5AB(2). The maximum penalty is 10 years’ imprisonment.
[7]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[8]Crimes Act 1958, s 88(1). The maximum penalty is 15 years’ imprisonment.
[9]Road Safety Act 1986, s 18. The maximum penalty is 25 penalty units or 3 months’ imprisonment.
[10]Road Safety Act 1986, s 72(1A). The…

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 Patrick McMillan v The Queen

Details

AGLC: Patrick McMillan v The Queen [2020] VSCA 189
Case: [2020] VSCA 189
Decision Date: 27 July 2020

CaseChat Overview and Summary

The appellant, Patrick McMillan, was convicted of a series of serious criminal offences including armed robbery, aggravated carjacking, reckless conduct endangering serious injury, and being a prohibited person in possession of a firearm and imitation firearm. He was sentenced to a total effective sentence of 14 years and 11 months’ imprisonment with a non-parole period of 10 years and 4 months. The central issue in the appeal was whether the trial judge had erred in calculating the maximum penalty for the offence of reckless endangerment, and whether the orders for cumulation and the sentencing on firearm charges infringed the principle of totality. The court was also asked to consider if there was double punishment on the firearm and imitation firearm charges.

The court found that there was an error in the maximum penalty for the offence of reckless endangerment. The correct maximum penalty for this offence was not 10 years but 7 years, which was a significant factor in the overall sentence. The court further found that the orders for cumulation and the separate sentencing on firearm and imitation firearm charges infringed the principle of totality. This principle requires that the cumulative effect of multiple sentences should not result in a sentence that is grossly disproportionate to the gravity of the offences. The court held that the trial judge’s approach to sentencing did not appropriately consider the principle of totality, leading to an over-punitive outcome.

The appeal was allowed, and the appellant was resentenced. The court recalculated the sentence to a total effective term of 13 years and 6 months’ imprisonment with a non-parole period of 9 years. This revised sentence addressed the identified errors and better reflected the principle of totality, ensuring the overall punishment was proportionate to the gravity of the offences committed.

The final orders of the court mandated that the appellant be resentenced to a total effective term of 13 years and 6 months’ imprisonment with a non-parole period of 9 years. The court’s recalculation and consideration of the principle of totality provided a more balanced and proportionate sentence, correcting the errors identified in the original sentencing.

Orders