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R v McMahon

R v McMahon

Case [2006] VSCA 240 26 October 2006

Criminal Liability

Sentencing

Criminal Law

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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…

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 McMahon

Details

AGLC: R v McMahon [2006] VSCA 240
Case: [2006] VSCA 240
Decision Date: 26 October 2006

CaseChat Overview and Summary

The appellant, McMahon, appealed against his sentence in relation to being a prohibited person in possession of an unregistered firearm and being in possession of a drug of dependence. The case was heard in the Victorian Court of Appeal. The central issue was whether the sentencing judge appropriately considered the "dead time" served by the appellant in custody in relation to current and unrelated offences. The appellant argued that the sentencing judge had not taken into account the time already spent in custody, which led to a manifest excess in the sentence.

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.

Orders