R v McLachlan - [1999] VSCA 122

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 314 of 1998

THE QUEEN

BENJAMIN ROY MCLACHLAN

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JUDGES:	WINNEKE, P., PHILLIPS and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 1999
DATE OF JUDGMENT:	3 August 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 122

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Criminal law – Sentencing – Intensive Correction Order – Suspended sentence – Breach – Continuous throughout Intensive Correction Order – Offence punishable by imprisonment – Whether performance of community work under Intensive Correction Order “exceptional circumstances” – Discretion – Whether manifestly excessive – Sentencing Act 1991, ss.26(1), (3A), (3B), (4).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Miss M.E. Sexton	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. B.R. Keating	Slink & Keating

WINNEKE, P.:

Chernov, J.A. will deliver the first judgment in this application.

CHERNOV, J.A.:

On 9 December 1998, the applicant pleaded guilty to breaching a relevant condition of an Intensive Correction Order ("ICO") and a suspended sentence imposed on him on 29 January 1998, by committing during the period of the orders, offences punishable by imprisonment. As a consequence, the applicant was sentenced to imprisonment for the period of one month of the suspended sentence and for 360 days being the unexpired portion of the term of imprisonment which was ordered to be served by way of an ICO. His Honour ordered that the 360 days' imprisonment be served concurrently with the incomplete sentence the applicant was then serving (and to which I will refer later) and the one-month sentence.
The applicant seeks leave to appeal against those sentences on a number of grounds which essentially involve the interpretation of s.26 of the Sentencing Act 1991 ("the Act") and on the ground that the sentence was manifestly excessive.
The applicant first came before his Honour on 20 January 1998 when he was 21 years of age. He pleaded guilty to 12 counts of burglary and two counts of attempted burglary which were committed in the Aspendale and Seaford areas between 6 May and 13 June 1997.
The applicant admitted 19 prior convictions from four court appearances between 18 August 1994 and 15 June 1994. They included convictions for theft, criminal damage and obtaining property by deception.
The burglary offences committed by the applicant involved forced entry to premises, the taking of goods and their exchange for heroin which was then used by him. When the applicant was interviewed by the police he made full admissions and co-operated by showing them the premises that he had burgled. The value of the goods taken amounted to approximately $50,000. Some of them were recovered and others were not. The victims were insured and generally, made successful claims on their insurers.
His Honour adjourned the hearing of the matters before him to 27 January 1998. After hearing a plea in mitigation of sentence in respect of the burglary charges and in respect of an appeal from an order of the Magistrates' Court made on 22 October 1997 in an unrelated…

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 McLachlan

Details

AGLC: R v McLachlan [1999] VSCA 122
Case: [1999] VSCA 122
Decision Date: 3 August 1999

CaseChat Overview and Summary

The case of R v McLachlan involved the defendant, McLachlan, who had previously been sentenced to an intensive correction order (ICO) by the Magistrates' Court. McLachlan breached the conditions of the ICO and was subsequently brought before the Supreme Court of Victoria to determine his sentence for the breach. The court was required to decide whether McLachlan's continuous breach of the ICO constituted "exceptional circumstances" under section 26(3A) of the Sentencing Act 1991, and whether the sentence imposed was manifestly excessive under section 26(4) of the Act.

The court considered the statutory framework for sentencing in cases of ICO breaches. It noted that section 26(1) of the Act mandated a custodial sentence for a breach of an ICO where the underlying offence was punishable by imprisonment. Section 26(3A) provided for an exception to this rule if the court found that the performance of community work under the ICO constituted "exceptional circumstances". The court examined the nature and extent of McLachlan's breaches, which were continuous and involved failure to comply with the conditions of the ICO, and assessed whether these circumstances were indeed "exceptional" under the Act. Furthermore, the court considered whether the sentence imposed, which was a suspended sentence in addition to the original ICO, was manifestly excessive under section 26(4).

The court determined that McLachlan's breaches were continuous and severe, but did not constitute "exceptional circumstances" as required by section 26(3A) of the Act. Consequently, the court concluded that a custodial sentence was appropriate. However, the court exercised its discretion under section 26(4) of the Act and determined that the sentence of a suspended sentence, in addition to the original ICO, was not manifestly excessive. The court took into account the totality of the circumstances, including McLachlan's previous compliance history, the nature of the breaches, and the need for deterrence and rehabilitation.

The court imposed a suspended sentence in addition to the original intensive correction order, which was not considered manifestly excessive.

Orders