SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 163 of 2006
| THE QUEEN |
| v. |
| BOW McMAHON |
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JUDGES: | VINCENT and NEAVE, JJ.A. and KING, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 October 2006 | |
DATE OF JUDGMENT: | 26 October 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 240 | |
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Criminal law – Sentence – Being a prohibited person in possession of an unregistered firearm – Being in possession of a drug of dependence – Appellant had accrued a substantial amount of time in custody in relation to current and unrelated offences – Whether sentencing judge failed to take into account “dead time” served by appellant – R. v. Kotzmann [1999] 2 V.R. 123 – Proper approach to be adopted with respect to pre-sentence detention when s.18(1) of the Sentencing Act 1991 not applicable – R. v. Chimirri [2003] VSCA 45 – Manifest excess – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.A. Trapnell | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr C.B. Boyce | Victoria Legal Aid |
VINCENT, J.A.:
The appellant pleaded guilty in the County Court at Melbourne, on 16 May 2006, to one count of being a prohibited person in possession of an unregistered firearm (count 1) and two counts of being in possession of a drug of dependence (counts 2 and 3).
He was aged 23 years at the time of sentencing and admitted 56 convictions or findings of guilt arising from 11 court appearances in the Children's and Magistrates' Courts between 21 May 1996 and 23 April 2004. They related, for the greater part, to his engagement in various forms of dishonesty, including burglary, and the commission of drug and driving offences. However, I note that they include two appearances for the intentional destruction of property, the possession and use of a regulated weapon, assaulting a police officer, causing wilful damage, the possession of ammunition and escape from lawful custody.
After hearing a plea in mitigation of penalty, the learned sentencing judge, on 23 May 2006, imposed the following sentences:
On count 1 - 18 months' imprisonment;
On count 2 - A fine of $50.00; and
On count 3 - A fine of $50.00.
His Honour directed that the appellant serve a period of 12 months' imprisonment before becoming eligible for parole. He also declared that the appellant had served 204 days of pre-sentence detention pursuant to the provisions of s.18(4) of the Sentencing Act 1991 and indicated that he had taken into account the 271 days that the appellant had spent in custody in relation to other matters in determining the sentence on count 1, to the extent that that sentence had been reduced by a period of six months.
Having been granted leave to do so, on 28 July 2006, the appellant seeks to overturn the sentence imposed upon him on count 1 on the grounds that -
1. The learned sentencing judge erred by failing to properly take into account the "dead time" served by the appellant when fixing the…
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- AGLC
- R v McMahon [2006] VSCA 240
- Case
- [2006] VSCA 240
- Decision Date
CaseChat Overview and Summary
The court examined the approach to be adopted for pre-sentence detention when section 18(1) of the Sentencing Act 1991 did not apply. The court referred to the cases of R. v. Kotzmann and R. v. Chimirri to understand the appropriate methodology. The court concluded that the sentencing judge had correctly assessed the appellant's circumstances and the relevant factors for the imposition of an appropriate sentence. The court found no basis to argue that the sentence was a manifest excess, as the sentencing judge had considered the appellant's pre-sentence detention.
Following this analysis, the Court of Appeal dismissed the appellant's appeal. The reasoning was that the sentencing judge had appropriately balanced all relevant factors, including the time spent in custody, in determining the sentence. There was no evidence to suggest that the sentence imposed was manifestly excessive. The appeal was thus without merit, and the original sentence was upheld.
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