R v McCoy - [2018] VSC 658

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0012

THE QUEEN
v
ROBERT McCOY	Accused

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JUDGE:	TAYLOR J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2018
DATE OF JUDGMENT:	2 November 2018
CASE MAY BE CITED AS:	R v McCoy
MEDIUM NEUTRAL CITATION:	[2018] VSC 658

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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Conduct endangering serious injury – Prohibited person possessing a firearm – Possessing a drug of dependence – Shotgun discharged at close range into driver’s side of vehicle carrying two passengers – General Deterrence – Denunciation – Remorse – Reasonable prospects for rehabilitation – Nash v The Queen (2013) 40 VR 134 and Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gibson QC	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr J Desmond	Giorgianni & Liang Lawyers

HER HONOUR:

Robert McCoy, you have pleaded guilty to four charges.

Two arise from an incident on 19 May 2017 in which you, a front passenger in one car, used a shotgun to fire a single cartridge towards the driver’s area of another, adjacent vehicle from a distance of about 75 cm. Those two charges are intentionally causing serious injury to the driver of that vehicle, Stephen Dobbyn, and conduct endangering serious injury with respect to the passenger in that vehicle, Belal Hablas.

The maximum penalties for these two offences are 20 years’ imprisonment[1] and five years’ imprisonment[2] respectively.
[1]Crimes Act 1958 (Vic) (‘Crimes Act’), s 16.
[2] Crimes Act, s 23.

The other two charges of being a prohibited person possessing a firearm, and possessing a drug of dependence, arise from items seized during the execution of search warrants at your home on 23 May 2017. The maximum penalties for these two offences are 10 years imprisonment or 1200 penalty units[3] and 1 year imprisonment or 30 penalty units, respectively.[4]
[3]Firearms Act 1996 (Vic), s 5(1).
[4]Drugs, Poisons and Controlled Substances Act 1981 (Vic), 73(1) (being possession for a non-trafficking purpose).

Summary of offending

You are an associate of Billal El-Haouli, Belal Hablas, Mohammad Haddara and Kidus Gerbu. You bear some animus towards Mr Hablas dating from 2016, consequent upon your belief that he stole your vehicle.

Between 17 and 18 May 2017 the mobile telephone service used by you received six missed calls from the mobile telephone service used by Mr Haddara. At 3.36am on 18 May 2017 you received a text message from Mr Haddara in the following terms: ‘don’t ignore my phone call you fucking rat, get bill to fucking call me now before I come and kick your door down Aussie skunks’. At 9.34am that day a short telephone call was made from your number to that of Mr Haddara.

About half an hour later you left your home address, in company with your son, driving a VW Golf. You later told police…

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 McCoy

Details

AGLC: R v McCoy [2018] VSC 658
Case: [2018] VSC 658
Decision Date: 2 November 2018

CaseChat Overview and Summary

In the Supreme Court of Victoria, McCoy was convicted of various serious criminal offences, including intentionally causing serious injury and possessing a firearm and drug of dependence while being a prohibited person. The incident involved McCoy discharging a shotgun at close range into a vehicle, endangering the lives of the two passengers within. The case presented significant legal questions concerning the appropriate sentence for McCoy's actions and the considerations that should guide the court in imposing it.

The primary legal issue before the court was the determination of an appropriate sentence for McCoy, taking into account the gravity of the offences, the need for general deterrence, the requirement for denunciation, and the prospects for McCoy’s rehabilitation. The court also had to weigh McCoy’s demonstrated remorse against the severity of the harm caused. Legal principles from previous cases, such as Nash v The Queen and Phillips v The Queen; Liszczak v The Queen, provided guidance on how to balance these factors in sentencing.

The court meticulously evaluated the evidence and submissions regarding the circumstances of the crime and McCoy’s background. It noted the profound impact of McCoy’s actions on the victims and the community, emphasising the need for a sentence that reflects the seriousness of the offences. After considering the principles of denunciation and general deterrence, the court also acknowledged McCoy's expressions of remorse and evaluated his potential for rehabilitation. Ultimately, the court imposed a sentence that, while severe, also recognised the mitigating factors present in the case.

The final orders of the court included a custodial sentence for McCoy, with specific terms reflecting the court's considerations of the various sentencing factors. The precise length and conditions of the sentence were detailed in the judgment, providing clarity on the court's approach to balancing the need for punishment with the prospects for rehabilitation.

Orders