R v McMenomy
[2008] VSCA 62
•17 April 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 417 of 2007
| THE QUEEN |
| v |
| BRENDAN McMENOMY |
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JUDGES: | MAXWELL P and BUCHANAN and VINCENT JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 April 2008 | |
DATE OF JUDGMENT: | 17 April 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 62 | |
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Criminal law – Sentence – Intentionally causing injury – Agreement between prosecution and defence that appellant was culpable as aiding and abetting the principal offender – Sentencing judge erred in stating the agreement was not legally tenable – Withdrawal from agreement by the prosecution – Sentencing judge failed to take into account period of incarceration resulting from breach of parole – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr C B Boyce | Victoria Legal Aid |
MAXWELL P:
I will invite Buchanan JA to deliver the first judgment.
BUCHANAN JA:
On 22 August 2005, the appellant was a passenger in a car driven by Matthew Andy in Berwick. Andy's car braked heavily to avoid a collision with a car driven by Michael Curry. Both cars stopped. Curry alighted from his car and was immediately attacked by Andy, who grabbed Curry in a headlock and dragged him to the ground. Andy punched and kicked Curry to the head and body. The appellant and another passenger in Andy's car, Darren McDonald, also kicked and punched Curry, or at least one or other of them did. The principal offender was Andy. Cars stopped and people approached the assailants, who ran to their car and drove off.
As a result of the attack, Curry suffered cuts, bruising and swelling to the face and body, dizziness and a severe headache. He has been unable to drive a motor car. As he is a sales representative and uses his car in the course of his work, this has affected his ability to earn income.
A jury found McDonald guilty of recklessly causing injury. Andy pleaded guilty to a charge of intentionally causing injury. Andy was sentenced to be imprisoned for a term of 24 months with a minimum term of nine months. It was directed that the sentence be served concurrently with the sentence which Andy was then undergoing. McDonald was sentenced to be imprisoned for a term of 12 months with a minimum term of four months. The sentence was directed to be served concurrently with the sentence which McDonald was then undergoing.
The appellant pleaded guilty in the County Court to one count of intentionally causing injury. After a plea, he was sentenced to be imprisoned for a term of 14 months with a minimum term of six months' imprisonment. It was ordered that the sentence be served cumulatively upon any sentence the appellant was currently serving. Accordingly, the appellant will be eligible to be released on parole in October 2008.
The appellant is now 24 years old. He was educated to year 9 and then worked as a labourer. Although the appellant came from a stable, caring family, he has been a long-term user of marijuana and has a large number of prior convictions - some 116 in all from 14 court appearances. The offences included offences of dishonesty, drug trafficking, weapons offences and offences involving violence. Among the last were assault, wilful damage, and reckless conduct causing danger of serious injury.
The first ground of appeal argued was that the sentence offended the principle of totality. The argument proceeded in this way. The appellant was sentenced on 23 November 2007. The offence was committed on 22 August 2005. In his sentencing remarks, the judge said that the appellant had been in custody since August 2007. In fact the appellant had been in custody from 20 November 2005 to 13 November 2006, as a consequence of the cancellation of his parole in respect of an earlier sentence. The sentencing judge was not informed of that year of incarceration. The appellant was not credited with any pre-sentence detention in respect of the present offence. The appellant's incarceration prior to August 2007 was relevant to his sentencing in November 2007 in terms of totality.[1]
[1]See Mill v The Queen (1988) 166 CLR 59, 66-67; R v Renzella [1997] 2 VR 88, 97-98; R v Stares (2002) 4 VR 314, 320-322.
Counsel for the respondent submitted that in the light of the circumstances of the offence and the appellant's background, the sentence imposed did not indicate that the sentencing judge overlooked or misapplied the principle of totality.
In my opinion, the structure of the sentencing remarks demonstrates that the sentencing judge did not take into account the appellant's incarceration for a year as a result of the breach of parole. His Honour listed the mitigating factors without referring to this period of imprisonment and, in discussing an appropriate minimum term, referred to the appellant having been in custody only since August 2007.
The next ground argued on appeal concerned the effects of the sentencing judge's reaction to the agreement reached between the defence and the prosecutor as to the basis upon which the appellant was culpable.
The prosecutor and counsel for the appellant agreed that the appellant committed the crime of intentionally causing injury by aiding and abetting the principal, Andy. The appellant's position was that he did not admit forming an intention to cause injury to the victim, being no more than reckless. This position was accommodated by the agreement that the appellant aided and abetted the offence committed by Andy. The sentencing judge protested, saying that:
The evidence demonstrates the appellant is the principal in every way.
When counsel said that the evidence did not support the contention that the appellant intended to cause injury, his Honour said:
This is a concept that's foreign to me.
He then said:
How can he be aiding and abetting a person who has got the intention to cause an injury when he himself doesn't have that intention?
Later, the prosecutor said that:
In the light of what's been discussed this morning, I am now instructed to withdraw the Crown's characterisation of Mr McMenomy as an aider and abettor.
The sentencing judge acquiesced in the change of position, saying that the appellant's position was 'contrary to what the law is'.
In fact the appellant's position was legally tenable. A person can be guilty of aiding and abetting, without forming an intention that the principal offence be committed. The only requisite mental element is assisting with knowledge of the principal's acts.[2]
[2]See R v Lowery and King (No 2) [1972] VR 560, 561, an authority which was cited to the sentencing judge.
Counsel for the appellant sought time to obtain instructions to deal with the new situation facing the appellant. This was resisted by the trial judge. Defence counsel said he wanted time to have a conference with his client to discuss the change in the Crown's position. The judge wondered how it could have been that a position so wrong in law was put to him. He said that he wished to finish the plea the following day. When counsel for the appellant said that he was not available on that day, by reason of an earlier commitment, the sentencing judge said:
What do you want me to do? Just work to your convenience? What are you suggesting, that I wait while you have this discussion?
Counsel said that he would be available in two days' time. The sentencing judge said:
To be brutally frank, I am sick and tired of having these half-heard cases listed at 9 o'clock and 10 o'clock, and then come in here and running a trial and then going back to chambers and working to all hours, to facilitate matters where accused are waiting for their sentences, where these matters arise in circumstances where parties have had opportunities. This matter you've had for two weeks to negotiate or to come to resolutions. How it can be said today, after the prosecutor had opened it and I have raised the issue, that nobody has actually read any or been in a position to produce authorities, I then have to stand it down and proceed with another matter which has just completed.
The sentencing judge went on to say that:
If I am not in a position to sentence your client this year, he will just have to wait.
and described the situation as 'appalling'. After a short adjournment, counsel for the appellant told the sentencing judge that the appellant had instructed him to proceed.
In my opinion, the sentencing judge ought not to have acquiesced in the Crown's repudiation of its agreement with the defence on the basis of his Honour's view of the law, and should not have applied pressure to the appellant to accept the new Crown position by suggesting that, if the case was not dealt with forthwith, it would not be dealt with that year. Contrary to the views expressed by the sentencing judge, the agreement between the Crown and appellant did accord with the law and ought to have been accepted.
For the foregoing reasons, I am of the opinion that the sentencing judge erred and the exercise of the sentencing discretion miscarried.
The crime in which the appellant participated, joining two others in punching and kicking a lone man who had not provoked the attack, was brutal and cowardly. The appellant’s record demonstrates a contempt for the law. At the time he committed the offences he was on parole and on bail for other offences. The sentencing judge concluded that the appellant's prospects of rehabilitation were 'bleak'. On the other hand, the appellant was relatively youthful and pleaded guilty.
Nevertheless, having regard to the course of the plea below and in all the circumstances of the offence and the personal position of the appellant, I think it appropriate to set aside the sentence passed below. I would re-sentence the appellant to be imprisoned for a term of 12 months and I would fix a minimum term of five months' imprisonment before the appellant is to be eligible for parole. I would order that the sentence be served cumulatively upon the County Court sentence currently being served.
MAXWELL P:
I agree, for the reasons which his Honour has given, that the appellant should be re-sentenced as his Honour proposes.
VINCENT JA:
I also agree that the appellant should be re-sentenced in the manner proposed by Buchanan JA and for the reasons that he has given.
MAXWELL P:
The order of the Court therefore is as follows:
1. Appeal allowed.
2.The sentence imposed in the County Court on 23 November 2007 is set aside and in lieu thereof the appellant is sentenced to
12 months' imprisonment.
3.The Court fixes a period of five months before the appellant is eligible for parole.
4.The sentence is to be served cumulatively on any uncompleted sentence being served by the appellant.
5.It is declared that the period of 16 days is to be reckoned as already served under the sentence and it is ordered that the fact that this declaration has been made and its details be entered I the records of the Court.
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