R v McIntosh - [2005] VSCA 106

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 53 of 2004

THE QUEEN
	v.
CHRISTOPHER GERARD McINTOSH

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JUDGES:	BATT, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 April 2005
DATE OF JUDGMENT:	15 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 106	First Revision: 4 May 2005

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Criminal Law - Sentencing - Attempted murder (2 counts) - Armed robbery - Brutal attempt to kill witnesses to armed robbery - Cumulating producing total effective sentence of 24 years' imprisonment with non-parole period of 20 years found to breach totality principle - Plea of guilty - Trial judge's quantification of discount for plea of guilty criticised - Appellant re-sentenced to total effective sentence of 21 years' imprisonment with non-parole period of 17 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.J. Croucher	Victoria Legal Aid
For the Respondent	Mr J.D. McArdle, QC	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

BATT, J.A.:

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

CHERNOV, J.A.:

The appellant, Christopher Gerard McIntosh, who is now aged 37 years, pleaded guilty on 20 November 2003 in the Supreme Court at Melbourne to two counts of attempted murder (counts 1 and 2) and one count of armed robbery (count 3). The maximum penalty for each offence is 25 years' imprisonment. The appellant admitted six prior convictions from two court appearances on 30 November 1987 and 3 September 1999. Relevantly, on 3 September 1999, the appellant was sentenced to five years' imprisonment with a non-parole period for three years for manslaughter, to which he had pleaded guilty, and three counts of theft. He was on parole for those offences at the time he committed those which are the subject of this appeal. After hearing a plea in mitigation made on the appellant's behalf, the learned sentencing judge on 16 March 2004 sentenced him to 18 years' imprisonment on each of counts 1 and 2 and eight years' imprisonment on count 3. His Honour ordered that six years of the sentence imposed on count 2 be served cumulatively with the sentence imposed on count 1, thereby imposing a total effective sentence of 24 years' imprisonment. His Honour also ordered that the appellant serve a minimum of 20 years' imprisonment before becoming eligible for parole. On 26 March 2004, the appellant filed a notice of application for leave to appeal against sentence and on 10 September 2004 he was granted such leave by a single judge of this Court pursuant to s.582 of the Crimes Act 1958.

The offences were committed on 21 August 2002 at a store called "Eagle Leather" in Abbotsford, which specialises in the sale of latex and leather bondage and fetish clothing and accessories. The business also sells sexual aids and pornographic videotapes. The two victims of the attempted murder counts were employees of that business. The victim of count 1 was David Oakley, who was then aged 33 years. The victim of count 2 was William Browning,…

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 [2005] VSCA 106
Case: [2005] VSCA 106
Decision Date: 15 April 2005

CaseChat Overview and Summary

The appellant, McIntosh, was convicted of two counts of attempted murder and armed robbery. McIntosh brutally attempted to kill two witnesses to an armed robbery, and his actions were severe enough to warrant a significant sentence. The matter came before the court for sentencing, and McIntosh pleaded guilty to his charges. The trial judge sentenced McIntosh to a total effective sentence of 24 years' imprisonment with a non-parole period of 20 years. McIntosh appealed the sentence, arguing that it breached the totality principle.

The appeal centred on the quantification of the discount for the plea of guilty. The court considered whether the trial judge had erred in the discount he applied for McIntosh's guilty plea. The court noted that the discount for a guilty plea should reflect the benefit to the prosecution of avoiding a trial and the disadvantage to the accused of being convicted following a trial. The court found that the trial judge's quantification of the discount was too lenient and did not adequately reflect the benefit to the prosecution of McIntosh's guilty plea.

The court re-sentenced McIntosh to a total effective sentence of 21 years' imprisonment with a non-parole period of 17 years. The court held that this sentence was appropriate and did not breach the totality principle. The court emphasised the importance of ensuring that the sentence reflects the seriousness of the offending and the need for general deterrence. The court also considered the need for proportionality in sentencing and the need to avoid excessive punishment.

The final orders of the court were that McIntosh's sentence be varied to a total effective sentence of 21 years' imprisonment with a non-parole period of 17 years. McIntosh's appeal against sentence was dismissed. The court held that the revised sentence was proportionate to the offending and did not breach the totality principle.

Orders