R v McDonald - [2004] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 316 of 2003

THE QUEEN
	v.
DARREN JAMES McDONALD

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JUDGES:	WINNEKE, P., CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2004
DATE OF JUDGMENT:	21 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 196	First Revision: 3 November 2004

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Criminal Law – Sentencing – Aggravated burglary (3 counts), committing an indecent act with a child under sixteen (2 counts), theft, burglary – Four discrete episodes of criminal offending – Orders for partial cumulation in respect of counts in each group of discrete offences - Cumulation not vitiated by uncertainty and not unauthorised by Sentencing Act 1991 – Total effective sentence of seven years’ and three months’ imprisonment with non-parole period of five years not manifestly excessive – Sentencing Act 1991, s.16(1) – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Ms H. Spowart	Victoria Legal Aid

WINNEKE, P.:

I invite Chernov, J.A. to deliver the first judgment in this matter.

CHERNOV, J.A.:

On 18 March 2003 the appellant, Darren James McDonald, who is now aged 38, pleaded guilty in the County Court at Ballarat to one presentment containing three counts of aggravated burglary, two counts of committing an indecent act with a child under 16 years of age, five counts of theft and one count of burglary. The offence of aggravated burglary attracts a maximum custodial sentence of 25 years and each of the offences of theft, burglary and committing an indecent act with a child under sixteen years of age attract a maximum penalty of 10 years' imprisonment. The appellant admitted 44 prior convictions from ten court appearances between 1985 and 2001, including convictions for a range of dishonesty offences. The crimes in question were committed on 1 July 2001 and 2 August 2001 in the Ballarat area and became known locally as the “Candlelight Burglaries”. After hearing on 18 March 2003 a plea in mitigation of sentence made on the appellant's behalf, in the course of which there was tendered in evidence the psychiatric report of Dr Lester Walton dated 9 April 2002 as well as victim impact statements and other material, his Honour sentenced the appellant on 24 March 2003 to a total effective sentence of seven years and three months' imprisonment and directed that he serve a minimum term of five years’ imprisonment before becoming eligible for parole. His Honour declared that the period of time the appellant had spent in pre-sentence detention was 565 days. Having regard to the grounds on which the appellant relies in support of his appeal, to which I will refer later, it is necessary to set out the sentences of imprisonment imposed by his Honour in respect of each count. His Honour first dealt with counts 1 to 4, the circumstances of which I will refer to later, imposing the following custodial sentences:

Count 1 (aggravated burglary) - three years
Count 2 (theft)…

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 McDonald

Details

AGLC: R v McDonald [2004] VSCA 196
Case: [2004] VSCA 196
Decision Date: 21 October 2004

CaseChat Overview and Summary

The appellant, McDonald, appealed against his sentence for multiple counts of criminal offences including aggravated burglary, committing an indecent act with a child under sixteen, theft, and burglary. The trial judge imposed a total effective sentence of seven years and three months of imprisonment, with a non-parole period of five years. The appellant argued that the sentence was manifestly excessive and that the trial judge had erred in ordering partial cumulation of sentences for discrete episodes of offending.

The court needed to determine whether the sentence was manifestly excessive and whether the trial judge erred in ordering partial cumulation. The court considered whether the sentence imposed was outside the range of sentences that a properly directed sentencing judge could have imposed, and whether the trial judge had considered the principles of cumulative sentencing under the Sentencing Act 1991. The court also examined whether the trial judge had correctly applied the principles of sentencing in determining the appropriate sentence for the appellant’s offending.

The court found that the sentence was not manifestly excessive, as it was within the range of sentences that a properly directed sentencing judge could have imposed. The court held that the trial judge had not erred in ordering partial cumulation of sentences for the discrete episodes of offending, as the sentences were not vitiated by uncertainty and were not unauthorised by the Sentencing Act 1991. The court also found that the trial judge had properly considered the principles of sentencing in determining the appropriate sentence for the appellant’s offending. The appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the appellant’s sentence of seven years and three months’ imprisonment with a non-parole period of five years was upheld.

Orders