R v McCluskey - [2002] VSCA 45

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 82 of 2001

THE QUEEN
	v.
ROSS ANTHONY McCLUSKEY

---

JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	WANGARATTA
DATE OF HEARING:	18 March 2002
DATE OF JUDGMENT:	18 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 45

---

CRIMINAL LAW - Appeal against sentence - Aggravated burglary, intentionally causing injury and driving whilst disqualified - Premeditated attack on victim in victim's own home - Whether judge erred in cumulating sentences - Sentence of three years and three months (minimum two years) not manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. and Mr R. Pirrie	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G. J. Thomas	Victoria Legal Aid

WINNEKE, P.:

I will invite Chernov, J.A. to give the first judgment.

CHERNOV, J.A.:

On 2 April 2001, the applicant, who is now aged 30, pleaded guilty in the County Court at Ballarat to one count of aggravated burglary, to one count of intentionally causing injury and to two related summary charges of driving whilst disqualified and driving an unregistered vehicle. The maximum penalties were, for aggravated burglary, 25 years' imprisonment and for intentionally causing injury, 10 years' imprisonment. The applicant admitted to 29 prior convictions from 11 previous court appearances between 18 June 1989 and 26 April 2000, including convictions for two charges of false imprisonment, aggravated burglary, assault occasioning actual bodily harm, assault in company and unlawful assault. He was also convicted, on 26 April 2000, the day before the present offences, of being in possession of a regulated weapon and being drunk in a public place. He appealed against those sentences and, by reason of that, was released on bail. The applicant had also previously been convicted of nine charges of driving a motor car whilst disqualified and of six charges of driving a motor vehicle whilst having in excess of the prescribed percentage of alcohol in his blood.

After hearing a plea in mitigation made on his behalf on 3 April 2001, on 11 April 2001 the applicant was sentenced to a total effective sentence of three years and three months' imprisonment. His Honour fixed a non-parole period of two years. On the count of aggravated burglary, the applicant was sentenced to two years' imprisonment, and on the count of intentionally causing injury, to 18 months' imprisonment; on the summary charge of driving whilst disqualified, four months' imprisonment, and he was disqualified from driving for a period of four years. His Honour ordered that 12 months of the sentence on count 2 and three months of the sentence on the summary charge of driving whilst disqualified be cumulated on the sentence imposed in relation to count 1. The applicant seeks leave to appeal against the sentence on seven grounds, which I will describe shortly. Before doing so, however, I will summarise the circumstances of the offending.

The applicant and his co-offender, Gregory Michael Clark, spent the afternoon and evening of 27…

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.

Keep reading for free

Create a free CaseChat account to read R v McCluskey and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] VSCA 45
Decision Date: 18 March 2002

CaseChat Overview and Summary

In the matter of R v McCluskey, the High Court of Australia considered an appeal against sentence following a conviction for aggravated burglary, intentionally causing injury, and driving while disqualified. The appellant, McCluskey, was found guilty of a premeditated attack on the victim in their own home. The crux of the appeal was the contention that the sentence imposed by the trial judge was manifestly excessive. The trial judge had sentenced McCluskey to a term of three years and three months imprisonment, with a minimum non-parole period of two years.

The primary legal issue before the court was whether the trial judge had erred in cumulating the sentences for the various offences. McCluskey's counsel argued that the sentence was disproportionate and did not adequately reflect the relative seriousness of the individual offences. The court was required to determine if the sentence was manifestly excessive, taking into account the totality of the circumstances, including the nature and gravity of the offences and the need for deterrence and denunciation.

The court held that the sentence was not manifestly excessive. It found that the trial judge had appropriately considered the totality of the circumstances, including the premeditated nature of the attack and the cumulative effect of the offences. The court noted that the sentence imposed was within the range of penalties typically imposed for such offences and that there was no error in the cumulation of sentences. Consequently, the appeal against sentence was dismissed. The court affirmed the sentence of three years and three months imprisonment, with a minimum non-parole period of two years, as appropriate and not manifestly excessive.

Orders