R v McLaughlin - [2018] VSC 310

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0049

THE QUEEN
v
LISA JANE McLAUGHLIN	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2018
DATE OF SENTENCE:	12 June 2018
CASE MAY BE CITED AS:	R v McLaughlin
MEDIUM NEUTRAL CITATION:	[2018] VSC 310

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CRIMINAL LAW – Sentence – Contravention of Community Correction Order – Further offending and breach of condition – Plea of guilty to breach – Rehabilitation – Community Correction Order confirmed – Offence proven and charge dismissed – Sentencing Act 1991 ss 76, 83AD, 83AS(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms N Burnett	Office of Public Prosecutions
For the Accused	Mr J McMahon SC with Ms K Ballard	Leanne Warren & Associates

HIS HONOUR:

On 26 April 2016 I sentenced you following your plea of guilty to the manslaughter of Graham Stevens. You were sentenced to 537 days’ imprisonment, together with a two year community corrections order with special conditions, including that you perform 100 hours of unpaid community work, and you undergo various assessments and treatments for substance and alcohol abuse, and for your mental health. I declared pre-sentence detention of 537 days be taken into account.

The circumstances that gave rise to your offending were quite tragic. The full sentence is published and can be found at [2016] VSC 189. Your community corrections order (‘CCO’) expired in April 2018. You are now charged with one count of failing to comply with your CCO under s 83AD of the Sentencing Act 1991, by further offending and a breach of conditions.

You have pleaded guilty to the breach. I must also reconsider the original sentence that I imposed for your offending.

The Contraventions

The contraventions of the CCO are put on the dual basis of further offending and non-compliance with a condition of the order. On 18 April 2018, you pleaded guilty to a single count of theft at the Frankston Magistrates' Court. You were placed on a 12 month adjourned undertaking otherwise known as a good behaviour bond with the condition that you pay $300 to the court fund. I understand you have paid this. The theft was committed on 21 December 2017, that is four days before Christmas. It involved you appropriating dishonestly beauty products to the value of $135 from Woolworths. You made full admissions and told police that the reason for your offending was ‘I just wanted to buy my niece a Christmas present.’ At the time, you were in receipt of a disability support pension and a parenting payment.

You completed the required 100 hours of community work. The non-compliance contravention alleged related to one unacceptable absence from the community work component of your order. I am told that your daughter, who was 12 years old at the time, was sick and you were unable to arrange appropriate childcare. In my view, it is readily understandable that you would tend towards being parentally overprotective,…

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 McLaughlin

Details

AGLC: R v McLaughlin [2018] VSC 310
Case: [2018] VSC 310
Decision Date: 12 June 2018

CaseChat Overview and Summary

In the case of R v McLaughlin, the appellant was charged with breaching a Community Correction Order (CCO) by further offending and contravening a condition of the CCO. The case was heard in the relevant court. The appellant pleaded guilty to the breach of the CCO but contested the imposition of a custodial sentence. The respondent argued for a custodial sentence due to the appellant's history of offending and the severity of the breach.

The court was required to determine whether a custodial sentence was appropriate under the circumstances. The legal issues included the principles governing sentencing for breaches of CCOs, the weight to be given to the appellant's plea of guilty, and the importance of rehabilitation over punishment. The court had to consider whether the breach warranted a custodial sentence or if an alternative, such as an extended CCO, would be more appropriate.

The court reviewed the sentencing principles outlined in the Sentencing Act 1991 and noted the appellant's guilty plea and the potential for rehabilitation. The court found that while the breach was serious, the appellant's guilty plea and the potential for rehabilitation through an extended CCO were significant mitigating factors. Consequently, the court decided to confirm the existing CCO with additional conditions, dismiss the charge, and order the appellant to comply with the extended CCO. This decision reflected a balance between punishment and rehabilitation, considering the appellant's circumstances and the principles of justice.

Orders