Peter McCarthy v The Queen - [2018] VSCA 91

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0036

PETER McCARTHY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 April 2018
DATE OF JUDGMENT:	13 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 91
JUDGMENT APPEALED FROM:	DPP v McCarthy (Unreported, County Court of Victoria, Judge McInerney, 8 February 2018)

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CRIMINAL LAW – Sentence – Appeal – Attempted armed robbery – Sentenced to imprisonment for 1 year and 292 days and 3 year community correction order – Judge mistook applicant’s prior criminal history – No reference in judge’s reasons to applicant’s early plea of guilty – Offending at lowest level – Offending by homeless applicant – Offending for purpose of obtaining ‘a roof over his head and some good meals’ – Specific error established – Appeal allowed – Term of imprisonment set aside – Applicant resentenced to imprisonment for 1 year – Community correction order confirmed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Turnbull Lawyers
For the Respondent	Mr J Gullaci	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
ASHLEY JA:

On 1 February 2018, the applicant pleaded guilty in the County Court to one charge of attempted armed robbery contrary to ss 75A(1) and 321M of the Crimes Act 1958. The maximum term of imprisonment for attempted armed robbery is 20 years.[1]
[1]See ss 75A(2) and 321P(1) of the Crimes Act 1958.

On 8 February 2018, the applicant was sentenced to a term of imprisonment of one year and 292 days and a three-year community correction order commencing upon completion of the term of imprisonment. The community correction order included conditions as to supervision, treatment and rehabilitation. It also included a condition that the applicant perform 100 hours of unpaid community work. Pursuant to s 18(1) of the Sentencing Act 1991, the judge declared that a period of 292 days was to be reckoned as a period of imprisonment already served by the applicant under the sentence imposed.[2]
[2]DPP v McCarthy (Unreported, County Court of Victoria, Judge McInerney, 8 February 2018) (‘Reasons’).

The applicant now seeks leave to appeal against the sentence imposed upon him. His proposed grounds of appeal are:

1.The sentencing judge’s consideration of the applicant’s prior criminal history was erroneous, which led to undue weight being placed on the principle of specific deterrence.
2.The sentencing judge erred in failing to give any, or sufficient weight to the applicant’s plea of guilty.
3.The sentence was manifestly excessive and outside the range of sentences reasonably open in the circumstances of this offence and this offender.

Circumstances of the offending

At approximately 4:10 pm on Saturday 22 April 2017, the applicant entered retail business premises, known as Club X, in Ballarat. Two employees of Club X, Mr Thomas Collins and Ms Mathilda Ward, were in the premises. The applicant approached Ms Ward and said ‘You’re not the girl’ and then walked out of the shop. Ms Ward recognised 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 Peter McCarthy v The Queen

Details

AGLC: Peter McCarthy v The Queen [2018] VSCA 91
Case: [2018] VSCA 91
Decision Date: 13 April 2018

CaseChat Overview and Summary

The case of Peter McCarthy v The Queen involved an appeal against the sentencing of the applicant for attempted armed robbery. The applicant was originally sentenced to a term of imprisonment for 1 year and 292 days, in addition to a 3 year community correction order. The High Court of Australia was tasked with determining whether the sentence was appropriate and whether any errors were made in the sentencing process.

The legal issues before the court included whether the sentencing judge had properly considered the applicant's prior criminal history, the impact of the applicant's early guilty plea, and the circumstances surrounding the offence. The court needed to assess if the sentence was proportionate to the offence and if any errors in the sentencing process warranted a re-sentencing.

The court found that the sentencing judge had made an error by not considering the applicant's prior criminal history correctly, and there was no reference in the judge's reasons to the applicant's early plea of guilty. The court also noted that the offending was at the lowest level, committed by a homeless applicant for the purpose of obtaining ‘a roof over his head and some good meals’. The court determined that the specific error established was sufficient to warrant a re-sentencing. The appeal was allowed, the term of imprisonment was set aside, and the applicant was resentenced to imprisonment for 1 year. The community correction order was confirmed.

The final orders of the court were that the term of imprisonment of 1 year and 292 days was set aside, and the applicant was resentenced to imprisonment for 1 year. The 3 year community correction order was confirmed, and the applicant was to serve the re-sentenced term of imprisonment. The court’s decision highlights the importance of correctly considering all relevant factors in the sentencing process, particularly when dealing with offenders who may be in vulnerable circumstances.

Orders