SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 236 of 2005
| THE QUEEN |
| v. |
| JAMES RODERICK McNAMARA |
---
JUDGES: | CALLAWAY and REDLICH, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 August 2006 | |
DATE OF JUDGMENT: | 4 December 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 267 | |
---
Criminal law – Sentencing – Robbery, attempted armed robbery and armed robbery – Sentences of 12 months’, 30 months’ and 60 months’ imprisonment respectively – Directions for cumulation resulting in total effective sentence of six-and-a-half years’ imprisonment with non-parole period of five years – Psychiatric condition and low level of intellect – Numerous relevant previous convictions – Little prospect of rehabilitation – Directions for cumulation appropriate – Head sentence and non-parole period within range – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S.M. Cooper | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Ms F.L. Dalziel | Victoria Legal Aid |
CALLAWAY, J.A.:
I agree with Redlich, J.A.
REDLICH, J.A.:
The appellant, who is now 28, pleaded guilty in the County Court to one count of robbery (count 1), one count of attempted armed robbery (count 2) and one count of armed robbery (count 3). He admitted 129 previous convictions from 30 Court appearances. After hearing a plea for leniency, the learned judge sentenced the appellant to 12 months’ imprisonment on count 1, 30 months’ imprisonment on count 2, and 60 months’ imprisonment on count 3. Six months of the sentence imposed on count 1 and 12 months of the sentence imposed on count 2 were ordered to be served cumulatively upon each other and upon the sentence imposed on count 3, resulting in a total effective sentence of 6 years and 6 months. The learned sentencing judge fixed a non-parole period of five years.
Mr McNamara appeals against the sentence imposed on three grounds:
1. The sentence is manifestly excessive in respect of both the total effective sentence and the non-parole period;
2. The learned sentencing judge erred in ordering the degree of cumulation he did; and
3.The learned sentencing judge erred in failing to take the role of the appellant’s psychiatric condition in his offending sufficiently into account.
The three offences committed by the appellant occurred within the space of an hour. The incident giving rise to count 1 occurred at around 5pm on 25 January 2005. The appellant entered a women’s accessory shop in Little Lonsdale Street, went behind the counter and demanded that the shop assistant open the till. The appellant repeated this demand with a raised voice, holding two fingers to the head of the assistant as if he were holding a gun. The assistant complied with his demand. As he took $335 from the till, he yelled at the assistant “don’t go, don’t go anywhere.”
About 15 minutes later the appellant entered another store in Bourke Street. One of the shop assistants approached him and asked him to move. The appellant stumbled backwards on the stairs and said “I’m a bit drunk”. He then…
Continue reading R v McNamara
Sign in free to access the full text
- AGLC
- R v McNamara [2006] VSCA 267
- Case
- [2006] VSCA 267
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved whether the directions for cumulation were appropriate, considering the appellant's psychiatric condition and low intellect. The court also needed to determine whether the head sentence and non-parole period were within the appropriate range given the appellant's extensive criminal history. The court was required to balance the appellant's personal circumstances against the need to deter and protect the community from his criminal behaviour.
The court found that the directions for cumulation were appropriate in this case. The court acknowledged the appellant's psychiatric condition and low intellect, but noted that these factors were not sufficient to warrant a departure from the usual approach to cumulation. The court also found that the head sentence and non-parole period were within the appropriate range, given the appellant's extensive criminal history and the seriousness of the offences. The court dismissed the appeal, finding that the sentences imposed were just and appropriate in all the circumstances.
The final orders of the court were to dismiss the appeal and uphold the original sentences imposed by the trial court. The court found that the appellant's psychiatric condition and low intellect did not warrant a departure from the usual approach to cumulation. The court also found that the head sentence and non-parole period were within the appropriate range, given the appellant's extensive criminal history and the seriousness of the offences. The court concluded that the sentences imposed were just and appropriate in all the circumstances.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.