CRIMINAL LAW – Sentence – Conduct endangering life and possession of an unregistered general category handgun – Mental health considerations – Plea of guilty – Remorse – Failed to comply with community correction order imposed for similar firearms offences – Assessed as suitable for further CCO – Impact of age and higher risk category in respect of COVID-19 – Custody more onerous – Prospects of rehabilitation reasonably open – General deterrence, denunciation, just punishment, community protection and rehabilitation – Aggregate sentence – Community correction order combined with custodial sentence – Crimes Act 1958 (Vic) s 22 – Firearms Act 1996 (Vic) s 7B(1) – Sentencing Act 1991 (Vic) – Boulton v R (2014) 46 VR 308.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Ms C Parkes
Ms A Hogan, Solicitor for Public Prosecutions
For the Defence
Mr D Cronin
Emma Turnbull Lawyers
HER HONOUR:
On 16 March 2020 you, Rodney Charles Madex, pleaded guilty to an indictment containing two charges. Charge 1 is conduct endangering life, contrary to s 22 of the Crimes Act 1958. The maximum penalty provided for this offence is 10 years’ imprisonment. The second charge is possession of an unregistered general category handgun, contrary to s 7B(1) of the Firearms Act 1996. The maximum penalty for this in your case, as this is a second offence, attracts the higher maximum penalty of 10 years’ imprisonment or 1200 penalty units.
The offending
The circumstances of your offending are described in the prosecution plea opening dated 20 March 2020.
In short compass, your offending occurred on 2 January 2019 at your home in Glengarry North in Bickertons Road, where you were living with your daughter, Tammy Madex, who is the victim in this matter.
On the afternoon of 2 January 2020, you attended the Glengarry Hotel where you drank a couple of glasses of beer. You then returned home. Tammy was home when you arrived, and you began to drink alcohol together.
Throughout the afternoon, you and Tammy had a number of minor disagreements. At one stage, you asked Tammy ‘what’s the problem?’ and she responded ‘there is only one big problem, and it’s me. Get a gun and a bullet and I’ll fix it’. During the evening, Tammy repeated those comments. You said to Tammy, ‘if you want to do it so bad, fine, I will get one for you’.
You and Tammy continued to drink alcohol throughout the evening.
At about 8:30pm, your son became aware of a comment posted on Facebook by Tammy. The post read, ‘isn’t it great when your dad tells you that you’re the most hated member of the family?’.
Shortly after 10:30pm,…
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.
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Details
AGLC
R v Madex [2020] VSC 145
Case
[2020] VSC 145
Decision Date
CaseChat Overview and Summary
The case of The Queen v Madex involved the defendant being charged with offences relating to the possession of an unregistered handgun and conduct endangering life. The defendant had pleaded guilty to these charges, which were heard and determined in the County Court of Victoria. The court had to consider various factors in sentencing, including the defendant's mental health, prior history of similar offences, and the impact of his age and health conditions on the potential effectiveness of different sentencing options.
The primary legal issues before the court were the appropriate sentencing options for the defendant's serious criminal conduct, the consideration of mental health and prior offending history, and the balance between general deterrence, denunciation, just punishment, community protection, and rehabilitation. The court also had to weigh the potential impact of a custodial sentence against the possibility of a community correction order, taking into account the defendant's likelihood of rehabilitation and the risk he posed to the community.
In reaching its decision, the court noted the defendant's guilty plea and expressed remorse, which were mitigating factors. However, the court also considered the defendant's failure to comply with a previous community correction order for similar firearms offences, indicating a pattern of behaviour that needed to be addressed. Despite the defendant being assessed as suitable for a further community correction order, the court determined that a custodial sentence was necessary to adequately address the seriousness of the current offences, the risk posed by the defendant, and the need for general deterrence. The court ultimately concluded that a combination of a community correction order with a custodial sentence was appropriate, balancing the need for punishment, deterrence, and the prospects of the defendant's rehabilitation.
The court ordered that the defendant serve a total of 15 months imprisonment, with 12 months suspended over two years, to be served by way of a community correction order, subject to specified conditions. The order also included a requirement for the defendant to participate in a rehabilitation program and comply with other conditions aimed at ensuring community protection and facilitating the defendant's reintegration.