R v McKittrick - [2000] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 175 of 1999

THE QUEEN

NEIL ARTHUR McKITTRICK

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JUDGES:	PHILLIPS, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 July 2000
DATE OF JUDGMENT:	17 July 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 131

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Criminal law - Sentencing - Armed robbery and recklessly causing serious injury - Inadequacy of judge's sentencing remarks - Insufficient to determine whether those remarks bespoke error - Sentences quashed and matter remitted for
re-sentencing: Crimes Act 1958 s.568(5).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. A.D. Trood	Victoria Legal Aid

PHILLIPS, J.A.:

On 30 November last the appellant was granted leave under s.582 of the Crimes Act to appeal against sentence.

On 6 July 1999 the appellant had pleaded guilty in the County Court to one count of armed robbery, contrary to s.75A of the Crimes Act 1958, and one count of recklessly causing serious injury, contrary to s.17. The maximum penalties for these two offences, we were told, were 25 years' imprisonment and 15 years' imprisonment respectively. The appellant, who was represented by counsel, admitted 110 prior convictions from 29 court appearances in a period from November 1973 to March 1999. A plea in mitigation was made during which no oral evidence was called but a report tendered from a social worker. The Crown put before the sentencing judge a victim impact statement and also a report from a medical practitioner on the injuries suffered by the victim at the hands of the appellant. On this occasion, that is, on 6 July, counsel for the appellant made a strenuous plea to his Honour for a pre-sentence report from a psychologist and the matter was adjourned accordingly to 3 August. A report was obtained from Mr Joblin, dated 5 August 1999 and that, it would appear, went into evidence on or before 9 August when the hearing of the matter was resumed.

On 9 August 1999, the appellant was sentenced to be imprisoned for seven years on count 1 and for four years on count 2. The sentences were to be served concurrently and his Honour fixed a non-parole period of five years, declaring (under s.18(4) of the Sentencing Act 1991) that 45 days should be reckoned as the time already served. Immediately after that declaration was made, prosecuting counsel drew the attention of the judge to an error, telling his Honour that the correct calculation was 11 days, not 45. His Honour then corrected his declaration, but I simply observe in passing that that correction has not found its way on to the quadruplicate; nor indeed is it reflected in the endorsement made by the Associate on the presentment. The matter deserved correction and, if I may say so, both the endorsement on the presentment and the quadruplicate ought to have been corrected before this.

The appellant now appeals, contending that the sentences were manifestly excessive…

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 McKittrick

Details

AGLC: R v McKittrick [2000] VSCA 131
Case: [2000] VSCA 131
Decision Date: 17 July 2000

CaseChat Overview and Summary

The matter of R v McKittrick was heard in a court in Australia. The appellant was convicted of armed robbery and recklessly causing serious injury. The appeal was against the sentence imposed, with the appellant claiming that the judge's sentencing remarks were inadequate and did not allow for the proper determination of whether the remarks contained any error. The case was brought before the court to decide whether the judge's sentencing remarks were sufficient and whether the sentences should be quashed and the matter remitted for re-sentencing.

The primary legal issue before the court was whether the sentencing remarks made by the judge were adequate in terms of allowing the court to determine whether there was any error in the remarks. The appellant's argument was that the remarks were inadequate, and therefore, the sentences should be quashed and the matter remitted for re-sentencing. The court had to examine the sentencing remarks made by the judge and determine whether they were sufficient to allow for a proper assessment of any error.

The court found that the sentencing remarks made by the judge were indeed inadequate in allowing for a proper determination of whether there was any error in the remarks. The court held that the remarks did not provide enough information to determine whether the sentences were appropriate and whether there was any error in the sentencing process. The court found that the inadequacy of the remarks did not allow for the proper assessment of the appellant's claims. Therefore, the court quashed the sentences and remitted the matter for re-sentencing.

In conclusion, the court found that the sentencing remarks made by the judge were inadequate and did not allow for the proper assessment of any error. The sentences were quashed, and the matter was remitted for re-sentencing. The court relied on section 568(5) of the Crimes Act 1958 in reaching its decision. The final orders of the court were that the sentences imposed on the appellant be quashed, and the matter be remitted for re-sentencing.

Orders