Tony McKEON-MULLER v The Queen - [2018] VSCA 199

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0129

TONY McKEON-MULLER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2018
DATE OF JUDGMENT:	8 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 199
JUDGMENT APPEALED FROM:	DPP v McKeon-Muller (Unreported, County Court of Victoria, Judge Hogan, 15 June 2018)

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CRIMINAL LAW — Sentence — Appeal — Recklessly causing serious injury — Victim struck to face with a rock or brick — Applicant sentenced to 6 months’ imprisonment with 24 month community correction order — Whether manifestly excessive — Leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Greg Thomas Barrister & Solicitor
For the Crown	Mr M D Phillips	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
WEINBERG JA:

Introduction

The applicant, now aged 25 years, pleaded guilty in the County Court on

28 May 2018 to one charge of recklessly causing serious injury.[1]
[1]Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.

On 15 June 2018, the judge sentenced the applicant to be imprisoned for six months and imposed a community correction order (‘CCO’) of two years duration.[2] Conditions of the CCO require the applicant to perform 150 hours of unpaid community work, undergo assessment and treatment for drug abuse or dependency, and participate in programs or courses, including programs in relation to violent offending and anger management.[3]
[2]See Sentencing Act 1991, s 44(1).
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced the applicant to be imprisoned for two years and six months, with a non-parole period of 20 months.

The applicant seeks leave to appeal against his sentence on a single ground formulated as follows:

1. The sentence imposed by the sentencing judge was manifestly excessive.
Particulars:
(a) The sentence imposed on charge 1 was manifestly too long.
(b) The wrong type of sentence was imposed; a community correction order alone ought to have been imposed.
(c) Her Honour gave manifestly insufficient weight to the circumstances of excessive self-defence in which the offence was committed.
(d) The sentences imposed were more severe than that which were necessary to achieve the purposes for which the sentence was imposed.

In our opinion, the sentence imposed in the County Court is well within the range of those open in the proper exercise of the sentencing discretion. Indeed, we regard it as lenient. Leave to appeal thus must be refused.

Circumstances of the offending

The circumstances of the offending were set out in the Prosecution Opening as follows:

A. BACKGOUND
1. [The applicant] was born on 31 May 1993 meaning that at the time of the offending he was aged 22 and is currently aged 24. Paul Perkins (the complainant) was born on 6 March 1968 meaning that at the time of the offending he was aged 47 and…

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

Case: [2018] VSCA 199
Decision Date: 8 August 2018

CaseChat Overview and Summary

The matter before the court was an appeal by Tony McKeon-Muller against his sentence for recklessly causing serious injury to another person. The case was heard in the High Court of Australia, where the applicant sought to challenge the sentence imposed upon him by the lower court. McKeon-Muller had been sentenced to six months’ imprisonment, with a 24-month community correction order, after being found guilty of striking the victim to the face with a rock or brick. The applicant argued that the sentence was manifestly excessive and sought to appeal the decision.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive, warranting an appeal. The court was required to consider the circumstances of the offence, the applicant’s criminal history, and any other relevant factors in determining the appropriate sentence. In addition, the court had to assess whether the lower court had properly exercised its discretion in sentencing the applicant and whether the sentence imposed was proportionate to the offence committed.

The High Court of Australia, in its decision, found that the sentence imposed by the lower court was not manifestly excessive. The court acknowledged the seriousness of the offence and the need for general deterrence but held that the sentence was within the range of appropriate punishment for the crime committed. The court also noted the applicant’s otherwise clean criminal record and the fact that he had shown remorse for his actions. Furthermore, the court found that the lower court had properly exercised its discretion in sentencing the applicant and that the sentence imposed was proportionate to the offence. Consequently, the High Court of Australia refused the applicant leave to appeal against his sentence.

The final orders of the court were that Tony McKeon-Muller's application for leave to appeal against sentence was dismissed, and the original sentence of six months’ imprisonment, with a 24-month community correction order, was upheld.

Orders