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

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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.

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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…

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 McNamara

Details

AGLC: R v McNamara [2006] VSCA 267
Case: [2006] VSCA 267
Decision Date: 4 December 2006

CaseChat Overview and Summary

The case of R v McNamara involved the appellant who was convicted of robbery, attempted armed robbery, and armed robbery. The court sentenced him to 12 months, 30 months, and 60 months' imprisonment respectively. The appeal was directed towards the cumulation of these sentences, resulting in a total effective sentence of six-and-a-half years with a non-parole period of five years. The appellant raised concerns about the severity of the sentences, given his psychiatric condition and low intellect, as well as the numerous relevant previous convictions he had accumulated. The appellant also argued that there was little prospect of his rehabilitation.

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