R. v. McCorriston - [2000] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 50 of 2000

THE QUEEN

AARON NEIL McCORRISTON

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2000
DATE OF JUDGMENT:	17 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 200

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Criminal law – Sentence – Aggravated burglary and recklessly causing serious injury by severely drug affected youthful offender – Sentence of 3½ years not excessive – Multiple offences – Concurrency and cumulation – Desirability of “moderating and cumulating” in appropriate cases – R. v. Newman and Turnbull [1997] 1 V.R. 146 and Pearce v. R. (1998) 194 C.L.R. 610 referred to.

Practice on criminal appeals – Framing of grounds – Discrete sentencing errors such as “manifest disparity” not capable of being argued upon ground of “manifest excess” – Practice Statement C.A.1 of 1996 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.G. Hicks	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. M.R. Simon	Peterson Westbrook Cameron

WINNEKE, P.:

Every day, judges of the County Court are faced with the difficult but important problem of devising a suitable sentencing disposition for those whose conduct has been influenced by addictive and mind-distorting drugs. On the one hand, the sentencing judge has to consider and take into account the gravity of the crime and the requirement that it will be justly punished. On the other hand, he or she is required to inject into the sentencing disposition appropriate allowances and discounts for the frailties of youth, mental states disturbed by mind-altering substances, prospects of rehabilitation and other factors. Many drug related crimes are serious invasions of the person and/or property of their victims; but in almost every instance the judge is faced with the delicate task of balancing these competing factors. Perhaps the task of the sentencing judge has not been made any easier by the removal of sentencing options which used to exist in s.28 of the Sentencing Act.

This case has provided such a problem for the sentencing judge. The appellant is a young man who, in company with confederates, committed serious offences involving personal violence against a victim in his own home and in the presence of the victim's three-year-old son and the sister of his de facto wife. As a consequence the appellant, along with his two co-accused, was charged with aggravated burglary and recklessly causing serious injury, offences which carry respective maximum penalties of 25 years and 15 years. The appellant pleaded guilty to these offences and admitted previous convictions imposed in December 1998, that is, some three months before these offences were committed, in respect of which he had been given both an intensive correction order and a community-based order. After a lengthy plea, in the course of which a great deal of material was put before the judge as to the appellant's history of substance abuse and apparent efforts to rehabilitate himself, her Honour, in very careful sentencing remarks, concluded that 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 R. v. McCorriston

Details

AGLC: R. v. McCorriston [2000] VSCA 200
Case: [2000] VSCA 200
Decision Date: 17 October 2000

CaseChat Overview and Summary

The appellant, McCorriston, was convicted of aggravated burglary and recklessly causing serious injury to a police officer. He was sentenced to a total of 3 1/2 years imprisonment, with the court considering the effect of the drugs on his behaviour and his young age. McCorriston appealed the sentence, arguing it was excessive, and sought leave to argue additional grounds of appeal relating to sentencing errors. The Crown opposed the appeal and the additional grounds.

The primary legal issues in this appeal were whether the sentence was excessive, and the appropriate approach to considering additional grounds of appeal in criminal cases. The court needed to determine if the sentence was manifestly excessive or disproportionate, and whether the additional grounds raised by the appellant could be considered under the general ground of appeal of manifest excess.

The court found that the sentence was not manifestly excessive, taking into account the nature of the offences, the effect of the drugs on McCorriston, and his age. The court also held that discrete sentencing errors, such as the issue of manifest disparity, could not be argued under the general ground of manifest excess. Instead, these issues required separate grounds of appeal. The appeal was dismissed, and the sentence upheld.

The court did not make any orders altering the sentence. The appeal was dismissed, and the original sentence of 3 1/2 years imprisonment was upheld.

Orders