R v McKenna - [2000] VSCA 194

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 279 of 1999

THE QUEEN

MARCUS GREGORY McKENNA

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2000
DATE OF JUDGMENT:	10 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 194

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Criminal law – Sentence – Attempted armed robbery and theft – Head sentence of three-and-a-half years confirmed but non-parole period reduced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. O.P. Holdenson, Q.C.	Ellinghaus & Lindner

WINNEKE, P.:

The appellant, Marcus McKenna, who is currently aged 26 years, pleaded guilty in the County Court at Melbourne on 26 October 1999 to one count of attempted armed robbery and one count of theft. The attempted armed robbery was committed by the appellant in company with another man, Frank Iaquinto, who stood for sentence at the same time.

The attempted robbery involved the entry at night, on 24 March 1999, into the premises of a 50-year-old Bacchus Marsh man who was known to the appellant. The appellant and his co-accused sought to disguise themselves by donning balaclavas. They apprehended the victim as he entered his own home. They accosted him with a knife, which was possessed by Iaquinto, and threatened him with injury if he did not give them money. They manhandled the victim, who eventually managed to escape inside his house and locked the door. Before decamping, the appellant went to his victim's car and stole $800, which was the subject of the theft alleged in count 2.

The victim recognised the voice of the appellant during the attempted robbery. The police apprehended him and at first he denied his involvement. The co-accused was apprehended shortly afterwards and he made full admissions and implicated the appellant. Shortly thereafter, the police again interviewed the appellant and he admitted his complicity but sought to reduce his role by claiming that there was a third person involved, called "Ronnie", and that he, the appellant, had remained in the car outside as the getaway driver and had only intervened when he heard the victim scream. He denied taking the money from the vehicle. He gave no evidence on his plea to support his contentions and the judge rejected them.

The judge sentenced Iaquinto, who had a far more extensive criminal history than the appellant, to four-and-a-half years' imprisonment on the attempted armed robbery and to six months' imprisonment, to be served concurrently, on the theft. He imposed a sentence of three-and-a-half years upon the appellant for the attempted armed robbery and six months, again concurrent, for the theft. The total effective sentence imposed upon the appellant was, therefore, three-and-a-half years. His Honour ordered the appellant to serve two-and-a-half years before becoming eligible for parole.

The appellant had ten prior convictions from six previous court appearances, but he had not previously been sentenced to gaol.

His Honour found the facts as I have briefly recited…

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 McKenna

Details

AGLC: R v McKenna [2000] VSCA 194
Case: [2000] VSCA 194
Decision Date: 10 October 2000

CaseChat Overview and Summary

The respondent, McKenna, was convicted for his involvement in an attempted armed robbery and theft. He was sentenced to a head sentence of three-and-a-half years imprisonment. McKenna appealed against the sentence on the grounds that the non-parole period of two-and-a-half years was manifestly excessive. The appeal was heard in the Full Court of the Supreme Court of South Australia.

The appeal raised questions about the appropriate weight to give to the seriousness of the offence and the respondent's personal circumstances in determining the non-parole period. The court considered whether the trial judge had given adequate weight to the personal circumstances of the respondent, which included his young age and disadvantaged background, when setting the non-parole period. The court also examined whether the sentence was manifestly excessive in all of the circumstances, including the gravity of the offence and the need for general deterrence.

The Full Court found that the trial judge had given insufficient weight to the respondent's personal circumstances and that the non-parole period was manifestly excessive. The court reduced the non-parole period to two years, while confirming the head sentence of three-and-a-half years imprisonment. The court emphasised the importance of considering the individual circumstances of the offender in determining the non-parole period and the need to balance the need for general deterrence with the need for proportionality in sentencing.

The appeal was allowed in part. The sentence was varied to reduce the non-parole period to two years. The remainder of the sentence was affirmed.

Orders