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R v McEachran

R v McEachran

Case [2006] VSCA 290 18 December 2006

Sentencing

Intentially causing serious injury

Common law kidnapping

Reckless conduct endangering life

Disparity in sentencing

Re-sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 383 of 2005

THE QUEEN
	v.
MARK ANDREW McEACHRAN

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JUDGES:	CALLAWAY and REDLICH, JJ.A. and SMITH A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 November and 1 December 2006
DATE OF JUDGMENT:	18 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 290

Criminal law – Sentencing – Intentionally causing serious injury, common law kidnapping and reckless conduct endangering life – Newborn baby snatched from mother in supermarket car park and left in derelict house in the hope that she would be found – Appellant sentenced to 11 years’ imprisonment with non-parole period of seven-and-a-half years, whilst co-offender sentenced to eight years’ imprisonment with non-parole period of four-and-a-half years – Whether unjustifiable disparity between offenders – Challenge to finding of fact on basis not put below – Whether concession may be withdrawn – Appellant’s stance on parity also differing from plea – Whether appropriate nevertheless to consider parity – Whether less punitive sentencing regime appropriate - Maximum of five years’ imprisonment for child stealing a relevant consideration – Kidnapping for “mothering purposes” – Appellant re-sentenced to nine years’ imprisonment with non-parole period of five years and three months – Crimes Act 1958, ss.63, 63A, 320.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S.M. Cooper	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Victoria Legal Aid

CALLAWAY, J.A.:

The appellant and his wife, Cheryl McEachran, pleaded guilty in the County Court to a presentment containing four counts. Count 1 (intentionally causing serious injury) applied only to the appellant. Count 2 (recklessly causing serious injury) applied only to Cheryl McEachran. Counts 3 (kidnapping) and 4 (reckless conduct endangering life) applied to both offenders. The kind of kidnapping charged was kidnapping at common law, not the statutory version of that offence in s.63A of the Crimes Act 1958.[1] The maximum custodial penalties for the offences the subjects of counts 1, 2, 3 and 4 are 20 years’, 15 years’, 25 years’ and ten years’ imprisonment respectively.
[1]The penalty for common law kidnapping was formerly at large. The maximum term of imprisonment is now specified in s.320 of the Crimes Act.

The appellant also pleaded guilty to two summary charges. For each of those offences he was sentenced to be convicted and discharged. They form no part of the appeal and nothing further need be said about them.

After hearing pleas for leniency on their behalf, the learned judge sentenced the appellant and his wife on 20^th December 2005. His Honour sentenced the appellant to three years’ imprisonment on count 1, six years’ imprisonment on count 3 and five years’ imprisonment on count 4. He directed that one year of the sentence imposed on count 1 and four years of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 3, resulting in a total effective sentence of 11 years’ imprisonment. A non-parole period of seven-and-a-half years was fixed.…

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 McEachran

Details

AGLC: R v McEachran [2006] VSCA 290
Case: [2006] VSCA 290
Decision Date: 18 December 2006

CaseChat Overview and Summary

The appellant was convicted of intentionally causing serious injury, common law kidnapping, and reckless conduct endangering life in relation to the abduction of a newborn baby from a supermarket car park and leaving the child in a derelict house. The case was heard in the Court of Appeal. The appeal was against the sentence imposed, arguing that there was an unjustifiable disparity between the sentences of the appellant and his co-offender. The appellant contended that the disparity was unjustifiable because the trial judge had not been put to the basis of the challenge to the finding of fact. The appellant also argued that the trial judge should not have considered the parity between the sentences as the appellant’s stance on parity was different from that in the plea.

The court considered whether the trial judge erred in not being put to the basis of the challenge to the finding of fact and whether the concession could be withdrawn. The court also considered whether it was appropriate to consider parity between the sentences despite the appellant’s stance on parity differing from that in the plea. The court held that the trial judge did not err in considering the parity between the sentences. The court held that it was appropriate to consider parity despite the appellant’s stance on parity differing from that in the plea. The court also held that a less punitive sentencing regime was appropriate, taking into account the maximum of five years’ imprisonment for child stealing.

The appellant was re-sentenced to nine years’ imprisonment with a non-parole period of five years and three months. The appeal was dismissed, and the re-sentencing order was upheld. The court held that the re-sentence was just and appropriate, taking into account all relevant factors, including the maximum penalty for child stealing. The court held that the re-sentence achieved the necessary balance between punishment, deterrence, and rehabilitation.

Orders