R v McCallum - [2007] VSCA 286

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 86 of 2007

THE QUEEN
	v
STEPHEN THOMPSON McCALLUM

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JUDGES:	VINCENT, REDLICH and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2007
DATE OF JUDGMENT:	11 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 286

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Criminal Law – Sentence – Armed robbery – Breach of a community based order due to non-compliance and commission of further offences – Youth – Drug and alcohol abuse – First time in adult prison – Manifest excess – Penalty available for breach of community based order – Sentencing Act 1991 (Vic) s 47(3A) – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Ms F L Dalziel	Victoria Legal Aid

VINCENT JA:

Having been granted leave to do so by a judge of this Court, on 3 August 2007, the appellant seeks to overturn sentences imposed upon him in the County Court on 27 March 2007.

The factual situation against which the matter has arisen is relatively complicated and must be set out in some detail.

The appellant pleaded guilty before Judge Barnett in the County Court at Melbourne, on 5 March 2007, to one count of armed robbery and to a breach of a community based order which the sentencing judge had previously imposed on 15 July 2005.[1] He admitted 22 prior convictions arising from eight court appearances between December 2001 and July 2005. They involved a number of appearances at the Children’s Court on charges of theft, going equipped to steal, attempted theft and the possession of a controlled weapon without excuse, and convictions in the Magistrates’ and County Courts for various offences of causing serious injury recklessly, possessing a drug of dependence, namely heroin, theft, knowingly dealing with the proceeds of crime, possessing a controlled weapon without excuse, robbery and theft.
[1]That order had an operative period of two years and the requirements that the applicant perform 50 hours of unpaid community work and to attend for assessment and treatment. The appellant failed to perform unpaid community work as directed on 16 July 2005, 30 July 2005 and failed to attend under supervision as directed on 29 July 2005, 22 September 2005, 1 January 2005 and 3 November 2005. The appellant was warned on a number of occasions for breaching his CBO and on 12 January 2006, he telephoned the then supervising officer and informed her that he was unable to continue his CBO and asked that a breach be initiated. The report in respect of that breach was dated 11 March 2006 and the summons was filed on 12 December 2006, some nine months later.

He had been earlier convicted, on 21 December 2006, in the Magistrates’ Court on two counts of theft of a motor vehicle, two counts of unlicensed driving and driving at a dangerous speed. These offences, which were committed on 1 April 2006, 2 April 2006 and 7 July 2006,…

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 R v McCallum

Details

AGLC: R v McCallum [2007] VSCA 286
Case: [2007] VSCA 286
Decision Date: 11 December 2007

CaseChat Overview and Summary

In the matter of R v McCallum, the appellant sought to appeal against the sentence imposed by the County Court of Victoria. The appellant, a youth with a history of drug and alcohol abuse, had pleaded guilty to armed robbery, and the breach of a community based order due to non-compliance and commission of further offences. The County Court sentenced the appellant to a term of imprisonment, which was appealed on the basis that it was manifestly excessive. The Court of Appeal was tasked with determining whether the sentence imposed was manifestly excessive and whether the trial judge appropriately considered the relevant sentencing principles.

The court was required to decide whether the sentence imposed was manifestly excessive, and if not, whether the trial judge appropriately exercised his discretion in accordance with the principles set out in the Sentencing Act 1991 (Vic). The appellant argued that the sentence was manifestly excessive, given the appellant's age, history of drug and alcohol abuse, and the fact that this was the appellant's first time in adult prison. The appellant further submitted that the trial judge did not adequately consider the principles of proportionality and rehabilitation in sentencing.

The Court of Appeal found that the sentence imposed was not manifestly excessive, and that the trial judge had appropriately exercised his discretion in accordance with the principles set out in the Sentencing Act 1991 (Vic). The court noted that the appellant's history of drug and alcohol abuse, as well as his age, were relevant factors to be considered in sentencing, but that they did not necessarily require a non-custodial sentence. The court also noted that the seriousness of the offence, and the need to protect the community, were relevant considerations in sentencing. The Court of Appeal found that the trial judge had appropriately balanced these considerations in imposing the sentence.

The Court of Appeal dismissed the appeal, and upheld the sentence imposed by the County Court. The court found that the sentence was not manifestly excessive, and that the trial judge had appropriately exercised his discretion in accordance with the principles set out in the Sentencing Act 1991 (Vic). The court also noted that the appellant had breached a community based order, and had committed further offences while on bail, which were relevant considerations in sentencing. The Court of Appeal found that the trial judge had appropriately considered these factors in imposing the sentence.

Orders