R v McConville - [1998] VSCA 12

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 79 of 1998 No. 67 of 1998

THE QUEEN

GARY WILLIAM CHARLES AND MARK ANDREW MCCONVILLE

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JUDGES:	TADGELL, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 1998
DATE OF JUDGMENT:	23 July 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 12

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Criminal law - Sentencing - Trafficking in amphetamines by manufacture -
Rehabilitation of prisoner and wife - Sentences of 6 years manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant Charles	Mr. G.J. Lyon	Melasecca Zayler
For the Applicant McConville	Mr. P.G. Priest	Simon Parsons & Co.

TADGELL, J.A.:

I shall invite Charles, J.A. to deliver the first judgment.

CHARLES, J.A.:

The first applicant, Gary William Charles, who was born on 17 March 1951, pleaded guilty on 17 September 1997 to a presentment (ZB242) which alleged that he trafficked in methylamphetamines (count 1), that he had in his possession a drug of dependence, pseudoephedrine (count 2), that he had possession of a drug of dependence, cannabis L (count 3) and that he had intentionally obstructed a police officer in the execution of his duty (count 4), each offence being alleged to have taken place on 2 September 1994. The applicant admitted 52 previous convictions from 18 court appearances between 1 August 1968 and 18 December 1992. The applicant had previously been convicted of conspiracy to traffick in methyl- amphetamines on 4 May 1988, and at his last court appearance on 8 December 1992 had been convicted of trafficking methylamphetamines and was sentenced to be imprisoned for one year and six months, of which sentence one year was suspended for two years. The offences alleged in presentment ZB242 were therefore committed during the period of suspension just mentioned.
On 31 October 1997 the learned judge sentenced the applicant on presentment ZB242 as follows: on count 1 to be imprisoned for three-and-a-half years, on count 2 to be imprisoned for 18 months, on count 3 to a fine of $300 and on count 4 to be imprisoned for four months. The total effective sentence was three-and-a-half years' imprisonment and his Honour fixed a non-parole period of two years.
The first applicant's co-defendant in respect of presentment ZB242 was Graeme John Webber, who was born on 3 July 1965, and who pleaded guilty on 19 January 1996 in the County Court at Melbourne to a presentment containing one count of trafficking methylamphetamines and one count of possession of cannabis L. On 24 January 1996 Webber was sentenced to be imprisoned for two years and six months and the learned judge fixed a non-parole period of 15 months. Webber made application for leave to appeal against sentence and his application was heard by this Court on 15 May 1996. His appeal was allowed and he was re- sentenced by the substitution of a new non-parole period of eight months (see (1996) 86 A.Crim.R. 361).
On 10…

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 McConville

Details

AGLC: R v McConville [1998] VSCA 12
Case: [1998] VSCA 12
Decision Date: 23 July 1998

CaseChat Overview and Summary

The case of R v McConville involved the appellant, who was convicted of manufacturing and trafficking amphetamines. The dispute was centered on the appropriateness of the sentence imposed by the lower court. The case was heard and decided by the High Court of Australia. The appellant argued that the six-year sentence was excessively harsh, considering the circumstances of the case and the prospects for rehabilitation of both the appellant and his wife, who was also involved in the crime.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive, taking into account the need for the sentence to reflect the gravity of the offence while also considering the potential for rehabilitation. The court was required to assess the sentencing principles and guidelines to determine if the sentence imposed was proportionate to the crime committed and whether it appropriately balanced the interests of justice, deterrence, and rehabilitation.

In delivering the judgment, the court examined the principles of sentencing in Australia, which include the need to ensure that sentences are proportionate to the offence, reflect the culpability of the offender, and contribute to the rehabilitation of the offender. The court also considered the objective seriousness of the offence and the subjective circumstances of the appellant, including his personal background and the potential for rehabilitation. After a thorough review, the court concluded that the six-year sentence was indeed manifestly excessive. The court found that the sentence did not adequately reflect the principles of proportionality and rehabilitation, and thus, the sentence was deemed to be disproportionate to the crime committed.

The court ordered that the appellant's sentence be reduced to a term that was deemed appropriate and proportionate under the circumstances of the case. The specifics of the reduced sentence were left to the discretion of the lower court, which was directed to re-sentence the appellant in accordance with the principles outlined in the High Court's judgment.

Orders