Case Title:	R v McIver
Citation:	[2022] ACTSC 206
Hearing Date:	16 August 2022
DecisionDate:	16 August 2022
Before:	Mossop J
Decision:	See [67]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – recklessly inflicting grievous bodily harm – offence committed while in custody as a remandee housed with sentenced prisoners – mid-range of objective seriousness – significant disadvantage in childhood and application of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 principles – poor attitude to offending – found guilty at trial – extensive criminal history – consideration of the need for general deterrence of offending in custody in light of human rights obligations to segregate remandees from sentenced prisoners – causal link between offending and offender’s incarceration with sentenced prisoners – sentence of imprisonment imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – making a demand with a threat to endanger the health, safety or physical wellbeing of a person – possessing a knife without a reasonable excuse in a public place – using a carriage service to menace, harass or threaten – offences at or below mid-range of objective seriousness – consideration of sentence structure where offences have differing requirements as to non-parole periods and concurrency – sentences of imprisonment imposed
Legislation Cited:	Corrections Management Act 2007 (ACT), preamble cl 1-4, ss 7(c), 9(a)-(b), 10(1) Crimes (Sentence Administration) Act 2005 (ACT), preamble cl 1-4, ss 6, 7(1)(a)-(b), 7(2), 8(1)-(2), 9(2) Crimes (Sentencing) Act 2005 (ACT), ss 64, 72 Crimes Act 1900 (ACT), ss 20, 32(2), 382 Crimes Act 1914 (Cth), s 19(3) Criminal Code 1995 (Cth), s 474.17(1) Human Rights Act 2004 (ACT), ss 19, 28
Cases Cited:	Bugmy v the Queen [113] HCA 37; 249 CLR 571 Cheung v The Queen [2001] HCA 67; 209 CLR 1 Horan v O’Brien [2021] ACTSC 323 Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 R v Bedford [2019] ACTSC 282 R v Collier [2022] ACTSC 18 R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 R v Gordon [2021] ACTSC 283 R v Islam [2015] ACTSC 99 R v Potts [2018] ACTSC 299 R v Yuen [2019] ACTSC 70 Re an application for bail by Chris Merritt [2009] ACTSC 56 The Queen v Rappel [2019] ACTCA 11
Parties:	The Queen ( Crown) Anthony Daniel McIver ( Offender)
Representation:	Counsel M Howe ( Crown) J Masters ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Tu’ulakitau McGuire ( Offender)
File Number:	SCC 246 of 2021 SCC 247 of 2021 SCC 248 of 2021

MOSSOP J:

Introduction

On 24 June 2022, at the conclusion of a five-day trial, a jury found the offender, Anthony Daniel McIver, guilty of one count of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) (CC2021/5612). The maximum penalty for recklessly inflicting grievous bodily…

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 McIver

Details

AGLC: R v McIver [2022] ACTSC 206
Case: [2022] ACTSC 206
Decision Date

CaseChat Overview and Summary

The offender, Anthony Daniel McIver, was convicted of four offences: recklessly inflicting grievous bodily harm, making a demand with a threat to endanger the health, safety or physical wellbeing of a person, possessing a knife without a reasonable excuse in a public place, and using a carriage service to menace, harass or threaten. The offender was sentenced to imprisonment on each offence. The sentencing judge, Mossop J, found that the offender's offending was in the mid-range of objective seriousness, with the exception of the offence of possessing a knife without a reasonable excuse in a public place, which was below the mid-range. The judge took into account the offender's subjective circumstances, including his difficult upbringing, limited education, and history of substance abuse. However, the judge found that the need for general deterrence of offending that involves violence inflicted by one prisoner upon another was a significant sentencing consideration. The judge also considered the prima facie breach of the offender's right under s 19(2) of the Human Rights Act, which provides that a remandee must be segregated from convicted people, except in exceptional circumstances. The judge found that there was a causal link between the offender's offending and his incarceration with sentenced prisoners. The final sentence imposed was four years and five months' imprisonment, with a non-parole period of 16 November 2024. The offender was also ordered to pay a fine of $500 on each count.

Orders