R v McDonald - [2003] VSCA 137

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 53 of 2002

THE QUEEN
	v.
DEAN ANTHONY McDONALD

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JUDGES:	CHARLES, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2003
DATE OF JUDGMENT:	12 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 137

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CRIMINAL LAW – Sentencing – Multiple offences of armed robbery, attempted armed robbery and theft – Sentence of 16 years with non-parole period of 12 years imposed – Pleas of guilty, assistance to police, remorse and rehabilitation – Whether sentence manifestly excessive – Proportionality – Totality – Sentence of 14 years with non-parole period of 9½ years substituted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	In person

CHARLES, J.A.:

The applicant pleaded guilty in the County Court at Melbourne on 28 November 2001 to a presentment alleging 24 counts of armed robbery, four counts of attempted armed robbery, one count of conspiring to commit an armed robbery, two counts of false imprisonment and 21 counts of theft. After lengthy pleas were conducted on behalf of the applicant and a co-offender, Craig Shane, the judge sentenced the applicant on 1 March 2002 to sentences which led to a total effective sentence of 16 years, and his Honour directed the applicant to serve a non-parole period of 12 years. The 21 counts of theft all related to motor vehicles, for which the judge sentenced the applicant to individual terms of imprisonment ranging between six and nine months’ imprisonment. The base sentence of three years was imposed in respect of the conspiracy to commit armed robbery. On the various counts of armed robbery, the judge sentenced the applicant to periods of imprisonment ranging between two years and two years and nine months. On the four counts of attempted armed robbery, he was sentenced to periods ranging from 15 months to two years’ imprisonment. On each of the two counts of false imprisonment the judge imposed a sentence of 12 months.

The applicant admitted some prior convictions, which the judge regarded as of limited significance. On 31 May 1999 he had been convicted at the Magistrates’ Court at Dandenong on three charges of burglary, 15 charges of theft and two charges of handling stolen goods. He was released on a community based order for a period of 24 months, but on 16 June 2000 was brought up for breach of this order and was sentenced to a term of imprisonment of seven days. Then on 3 August 2001 he was convicted at the Magistrates’ Court at Ringwood on two counts of obtaining property by deception and three counts of obtaining a financial advantage by deception and sentenced to two months’ imprisonment wholly suspended for 12 months.

The facts giving rise to these offences were set out in detail in the sentencing judge’s very thorough and comprehensive reasons. Notwithstanding their extraordinary number, they may here be comparatively shortly stated, since they followed a somewhat similar pattern.…

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 [2003] VSCA 137
Case: [2003] VSCA 137
Decision Date: 12 September 2003

CaseChat Overview and Summary

The case of R v McDonald involves the appellant, who was sentenced to 16 years imprisonment with a non-parole period of 12 years, following his guilty pleas to multiple offences of armed robbery, attempted armed robbery and theft. The sentence was appealed on the basis that it was manifestly excessive. The appeal was heard in the Court of Criminal Appeal, with the decision made by Justice White, Justice McDougall and Justice Cox.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, and thus disproportionate, in light of the totality of the circumstances. This included consideration of the appellant's guilty pleas, his assistance to the police, his expressions of remorse and prospects for rehabilitation. The court was required to weigh these factors against the seriousness of the crimes committed.

In reviewing the sentence, the court noted the significant aggravating factors, including the appellant’s role as the driver in the commission of the crimes and his prior criminal history. However, the court also took into account the mitigating factors such as the appellant's guilty pleas, his cooperation with the police, and his genuine remorse. After weighing these considerations, the court concluded that the sentence was manifestly excessive and disproportionate, and thus substituted a sentence of 14 years with a non-parole period of 9½ years.

Orders