R v Tony McLeod - [2010] NSWDC 237

NEW SOUTH WALES DISTRICT COURT

CITATION:
R v Tony MCLEOD [2010] NSWDC 237
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2008/6288

HEARING DATE(S):

JUDGMENT DATE:
17 June 2010

PARTIES:
Regina
Tony McLeod

JUDGMENT OF:
Cogswell SC DCJ

COUNSEL:
Mr Patrick for the Director of Public Prosecutions
Mr Todd for Mr McLeod

SOLICITORS:

CATCHWORDS:
CRIMINAL LAW
sentence
maliciously inflict grievous bodily harm in company
convicted following jury trial
extremely serious injuries inflicted upon victim
unprovoked attack
offender bought assault to a stop
joint criminal enterprise
objective seriousness above middle of the range
no relevant criminal record
offender suffering from adjustment disorder
offender's wife suffering from depression
no exceptional circumstances warranting taking hardship on family into account in sentencing
parity
no other alternative to full-time imprisonment

LEGISLATION CITED:
Crimes Act 1900 s 35(2)
Crimes (Sentencing Procedure) Act 1999 s 5, s 21A, s 32

CASES CITED:
Markovic v The Queen and Pantelic v The Queen [2010] VSCA 105
R v Edwards (1996) 90 A Crim R 510
R v Groundar (2001) 127 A Crim R 331
R v Mitchell, R v Gallagher (2007) 177 A Crim R 94

TEXTS CITED:

DECISION:
Non-parole period of 22 months, balance of the term of 23 months.

JUDGMENT:

JUDGMENT

This afternoon I am sentencing Tony McLeod. I am sentencing him for a serious crime, known as maliciously inflict grievous bodily harm in company. That is made into a crime by the Crimes Act 1900, s 35(2). It carries a maximum of ten years imprisonment. In addition, when I am sentencing Mr McLeod, I will take into account, as requested by him and agreed to by the Crown Prosecutor, an offence of affray committed on 1 September 2007 and I sign a document under s 32 of the Crimes (Sentencing Procedure) Act 1999 to that effect.

Mr McLeod was charged with the offence and pleaded not guilty. He was tried by a jury at the District Court at Parramatta, before me. On 5 March 2010 the jury returned a verdict of guilty to the charge. It rejected an alternative charge which was available to them, that Tony McLeod assaulted the victim causing him actual bodily harm in company.

When a Judge sentences an offender, the first thing the Judge ought to do and I do this if I have not done it already, is to formally convict Mr McLeod of the offence of maliciously inflicting grievous bodily harm in company.

It is important in sentencing an offender for the Judge to set out publicly, on the record, a brief factual summary of the offence that the person has committed. This is so the seriousness of that crime can be understood in the context of the sentence which the Judge imposes.

This crime occurred in the early hours of 1 September 2007. It was about half past 5 in the morning. The innocent victim was a man named Roberto Beltran, who was in his late…

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 Tony McLeod

Details

AGLC: R v Tony McLeod [2010] NSWDC 237
Case: [2010] NSWDC 237
Decision Date: 17 June 2010

CaseChat Overview and Summary

The case of R v Tony McLeod involved a criminal conviction following a jury trial for the offence of maliciously inflicting grievous bodily harm in company. McLeod was found guilty of an unprovoked attack that resulted in extremely serious injuries to the victim. The attack was brought to a conclusion by the offender himself, who was part of a joint criminal enterprise. The court had to determine the appropriate sentence, considering the objective seriousness of the offence, McLeod's lack of a relevant criminal record, and his mental health issues, including an adjustment disorder and the depression of his wife. The court also had to weigh these factors against the need for parity in sentencing and the necessity of a full-time imprisonment sentence.

The primary legal issues the court needed to address were the appropriate level of seriousness for the offence and the mitigating factors that might influence the sentencing. Given the unprovoked nature and the severity of the injuries inflicted, the court identified the objective seriousness of the offence as above the middle of the range. The court considered McLeod's personal circumstances, including his mental health issues and the hardship his incarceration might impose on his family. However, the court found no exceptional circumstances that warranted taking these factors into account in determining the sentence.

The court, after considering the aggravating and mitigating factors, determined that the sentence should reflect the high level of seriousness of the offence. The court concluded that a full-time imprisonment sentence was the only viable option to adequately address the community's need for punishment and deterrence. The court sentenced McLeod to a total sentence of 45 months, comprising a non-parole period of 22 months and a balance of the term of 23 months. This sentence aimed to balance the need for punishment with the mitigating factors presented during the trial.

Orders

Orders of the court

Non-parole period of 22 months, balance of the term of 23 months.

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.