R v McIntosh - [2008] VSCA 242

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 530 of 2008

THE QUEEN

DESMOND MCINTOSH

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JUDGES:	KELLAM and DODDS-STREETON JJA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2008
DATE OF JUDGMENT:	5 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 242

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CRIMINAL LAW – Intellectually disabled applicant convicted of attempted armed robbery – Escalation of applicant's offending – Applicant's remorse – Whether sentencing considerations of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 applicable and, if so, taken into account – Whether community protection required incarceration – Admission of new evidence relevant to appropriate disposition.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Ms S Leighfield	Victoria Legal Aid
KELLAM JA:

For the reasons expressed by her, I agree with Dodds-Streeton JA that this appeal should be upheld. Furthermore I agree with the disposition of the appeal as proposed by her.

DODDS-STREETON JA:

The applicant, Desmond McIntosh, who suffers from an intellectual disability, pleaded guilty in the County Court to one count of armed robbery. On 1 February 2008, he was sentenced to 2½ years imprisonment and directed to serve seven months imprisonment before becoming eligible for parole. It was declared that the applicant had spent 83 days in custody by way of pre-sentence detention.
Pursuant to s 75A(2) of the Crimes Act 1958, the maximum sentence for the offence of armed robbery is 25 years’ imprisonment.
The applicant filed a Notice of Application to appeal against sentence on 1 February 2008. On 8 February 2008, the applicant was granted bail pending the hearing of his application for leave to appeal.
Grounds of appeal
The applicant seeks leave to appeal against sentence on the following
grounds:
1. The learned sentencing judge erred in her findings as to remorse and consequently had insufficient regard, or attached insufficient weight, to the applicant’s:

(a) remorse;
(b) plea of guilty; and
(c) prospects of rehabilitation
2. The learned sentencing judge erred in failing to accept that the principles in R v Verdins (2007) 16 VR 269 applied to the applicant’s situation (Reasons for Sentence, para 63) and consequently failed to have regard, or failed to have sufficient regard, to the impact of the applicant’s intellectual disability on:

McIntosh

JA DODDS-STREETON

KELLAM

(a)         the applicant’s moral culpability – and thereby the sentencing objectives of denunciation and just punishment;
(b)         the kind of sentence to be imposed and the conditions in which it should be served; and
(c)          the weight that a term of imprisonment would have on the applicant.
3.           The learned sentencing judge erred in her approach to the principle of protection of the community, in particular by:

(a) according too much weight to the protection of the community in the circumstances; and
(b) failing to consider adequately the means by which protection of the community could be achieved in this case.
4.…

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 McIntosh

Details

AGLC: R v McIntosh [2008] VSCA 242
Case: [2008] VSCA 242
Decision Date: 5 December 2008

CaseChat Overview and Summary

The case of R v McIntosh involved the applicant, McIntosh, who was convicted of attempted armed robbery. McIntosh had a history of escalating offending and had been living in supported accommodation on bail for approximately eight months. The court was tasked with determining whether sentencing considerations from relevant precedents were applicable, and if so, how they should be taken into account. Additionally, the court had to assess whether the need for community protection necessitated incarceration, considering the admission of new evidence relevant to the appropriate sentence.

The primary legal issues before the court were whether the sentencing considerations in R v Verdins, R v Buckley, and R v Vo applied to McIntosh's case and, if so, how they should be factored into the sentencing decision. The court also had to evaluate whether McIntosh's circumstances warranted incarceration for community protection, particularly in light of new evidence that indicated he was benefiting from stable accommodation and support services, and had not re-offended during his time on bail.

The court found that the sentencing judge had not erred in her consideration of McIntosh's prospects for rehabilitation or in imposing the sentence. However, the new evidence presented by McIntosh's counsel, including a report by Dr Tipirneni and an updated case management plan, indicated that McIntosh was benefiting from supportive living arrangements and had not re-offended in eight months. The court concluded that the new evidence showed McIntosh was well-supported and had not re-offended, making incarceration inappropriate at that time.

Given the new evidence and the court's consideration of the sentencing principles, the court determined that incarceration was not necessary to protect the community. The court allowed the appeal against sentence, reconsidered the matter in light of the new evidence, and imposed a different sentence in lieu of the original one.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows from the forgoing that, in my opinion, her Honour did not err. She did not underestimate or misconceive the applicant’s prospects for rehabilitation and did not impose a manifestly excessive sentence. New Evidence By the date of the hearing of the present application, the applicant had been on bail, living in supported accommodation for approximately eight months. Counsel for the applicant sought to tender additional evidence relevant to the sentence. The additional evidence comprised the report of Dr Tipirneni referred to above and an updated case management plan prepared by Mr Jung of DHS. The Crown did not oppose the tender of the new evidence. This Court permitted its receipt on the basis of the principle enunciated in Eliasen v R,[19] where Crockett J stated: This Court accedes very sparingly to applications of this kind. Applications for leave to appeal are dealt with on the basis that, unless the sentencing judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by a reference to the matters available to be considered by the judge at the time that he determines upon the sentence. However, it is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention. It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below: see Prior [1966] VR 459; Tutchell [1979] VR 248; Martin (unreported, Court of Criminal Appeal, Vic, 19 March 1990). [19] (1991) 53 A Crim R. 391, 394. The case management plan recited the background, history, attributes and mental health problems of the applicant. It relevantly stated: … Issues It appears that Mr McIntosh’s more recent charges may be related to several compounding issues, which include his mental health status, inconsistent medication regime, accommodation and gambling issues. Case management intervention DCS case management service commenced on 06 July 2007. Case management service co-ordinates following services; • Access the crisis accommodation (Furlong House Statewide Crisis accommodation). In the light of the new evidence, which indicated that the applicant was benefiting from stable, satisfactory accommodation, 24-hour support with medication management and DHS organisation and co-ordination; and was conducting himself well and had not re-offended for a period of eight months, this Court considered that incarceration, and the consequent termination of the beneficial arrangement currently in place, were inappropriate.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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