R v McRae - [2008] VSCA 74

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 436 of 2006

THE QUEEN
	v
CLINTON DWAYNE McRAE

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JUDGES:	VINCENT, ASHLEY and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 April 2008
DATE OF JUDGMENT:	9 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 74

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Criminal law – Sentence – Intentionally causing serious injury – Manifest excess – Victim first to resort to violence – Appellant’s alcohol consumption and its mitigatory significance in the circumstances – Whether victim’s deception regarding gender constituted mitigatory background – Appellant’s rehabilitation prospects and propensity for violence when affected by alcohol – Relevant prior convictions – Sentencing judge’s perception that appellant’s inappropriate reference to the victim conveyed contempt – Appellant fell to be sentenced for offending and not personal bias against victim – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr J P Dickinson	Robinson Gill Lawyers

VINCENT JA:

The appellant pleaded guilty in the County Court at Melbourne, on 17 November 2006, to a single count of intentionally causing serious injury.[1]
[1]The maximum penalty prescribed by s 16 of the Crimes Act 1958 is 20 years’ imprisonment.

He admitted two findings of guilt and 14 prior convictions arising from five court appearances in the Magistrates’ Courts between 5 September 1996 and 9 January 2003. They related to offences of wilfully damaging property, intentionally or recklessly causing injury, being drunk in a public place, resisting a police officer in the lawful execution of duty, acting in a disruptive or abusive manner, the possession of a drug of dependence, namely, Cannabis L, hindering and assaulting a police officer in the lawful execution of duty and breaching the terms and conditions of an intervention order.

After hearing a plea in mitigation of penalty, the sentencing judge, on 13 December 2006, imposed a term of imprisonment of seven years, in respect of which a non-parole period of four years and six months was fixed.

The present application is based upon the grounds that:

1. The sentence imposed is manifestly excessive.
2.The learned sentencing judge erred in giving insufficient weight to the matters put in mitigation.
3.The learned sentencing judge erred in failing to take into account as a matter of mitigation her finding that the complainant initiated the physical violence between the two when the complainant reacted to the expression of surprise and repugnance by the appellant at discovering the complainant’s true gender, by kicking and/or punching the appellant.
4.The learned sentencing judge erred in rejecting the appellant’s intoxication as a mitigating factor.
5.The learned sentencing judge erred in rejecting the complainant’s deception on the appellant, as to the complainant’s true gender, as being a mitigating factor.
6.The learned sentencing judge erred in rejecting the appellant’s shock at discovery of the [complainant’s] true gender as bring a mitigating factor.
7.The learned sentencing judge erred in her assessment of the appellant’s prospects of rehabilitation.
8.The learned sentencing judge…

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 McRae

Details

AGLC: R v McRae [2008] VSCA 74
Case: [2008] VSCA 74
Decision Date: 9 May 2008

CaseChat Overview and Summary

The appellant in this case was convicted for intentionally causing serious injury to a victim. The case was heard and determined by the court of appeal. The appellant was found to have caused serious injury to the victim after a violent altercation. The nature of the dispute was whether the sentence imposed by the lower court was manifestly excessive.

The legal issues before the court were whether the sentencing judge was correct in imposing a sentence for the offence of intentionally causing serious injury and whether the sentence was manifestly excessive. The court was also required to consider the appellant's alcohol consumption and its mitigatory significance in the circumstances, the victim's deception regarding gender as a mitigatory background, the appellant's rehabilitation prospects and propensity for violence when affected by alcohol, and the relevant prior convictions. Additionally, the court had to consider the sentencing judge's perception that the appellant's inappropriate reference to the victim conveyed contempt.

The court found that the appellant fell to be sentenced for the offending and not for personal bias against the victim. The court noted that the appellant's alcohol consumption was a significant factor in the circumstances of the offence, and that the victim's deception regarding gender did not constitute a mitigatory background. The court also considered the appellant's rehabilitation prospects and propensity for violence when affected by alcohol, as well as the relevant prior convictions. The court found that the sentencing judge's perception that the appellant's inappropriate reference to the victim conveyed contempt was not a relevant consideration in determining the sentence. The court allowed the appeal and re-sentenced the appellant.

Orders