Wickey v McVicar - [2011] ACTSC 159

ROBERT LACHLAN WICKEY v MATTHEW MCVICAR
[2011] ACTSC 159 (12 September 2011)

House v The King (1936) 55 CLR 499

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 46 of 2011

Judge: Burns J
Supreme Court of the ACT
Date: 12 September 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 46 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROBERT LACHLAN WICKEY
Appellant

AND: MATTHEW MCVICAR
Respondent

ORDER

Judge:  Burns J
Date:  12 September 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is upheld with respect to the sentence imposed on charge 3512 of 2010 and in lieu of a sentence of six months imprisonment, I will impose a sentence of one month imprisonment, which will be concurrent with all other sentences.

With respect to charges 5624 and 7797 of 2010, the appeals are upheld. The sentences imposed by her Honour are confirmed, but those sentences will commence from 17 April 2011.

There will be a non-parole period of three years, commencing from 17 April 2011.

On 20 April 2011 the appellant was sentenced by Magistrate Doogan in the Magistrates Court of this territory to a total sentence of five years imprisonment with a non-parole period of three years for a series of offences. I will not, in the course of these reasons, set out in detail those offences. Suffice it to say that there were four series of offences. The first series of offences occurred on 23 January 2010, the second series occurred on 2 January 2010 - in fact, those should be reversed. The third series was 25 February 2010 and finally, the last series was 19 March 2010.

It is conceded by the prosecution that her Honour was in error in commencing the sentences imposed from the date that her Honour passed down sentence, that being 20 April 2011. It is conceded that the appellant had been in custody with respect to these matters from 17 April 2011 and as such, 17 April 2011 should have been the commencement date for the sentences imposed by her Honour. I’ll come back to that in due course.

The Notice of Appeal as originally filed set out three grounds of appeal and I will not refer to those grounds in any detail because they were abandoned by the appellant at the outset of the hearing of the appeal. Mr Livingston, who appears on behalf of the appellant, was granted leave to amend the Notice of Appeal to insert two further grounds, which were the grounds that were ultimately argued before me. The first ground is that her Honour failed to properly apply the totality principle of sentencing when sentencing the appellant. The second ground is that the sentence imposed in respect of charge 3512 of 2010 was manifestly excessive.

I will deal with the second ground of appeal first. The evidence before her Honour was that, with respect…

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 Wickey v McVicar

Details

AGLC: Wickey v McVicar [2011] ACTSC 159
Case: [2011] ACTSC 159
Decision Date: September 12, 2011

CaseChat Overview and Summary

The appeal in Wickey v McVicar was heard by the Supreme Court of Victoria. The appellant, Wickey, challenged the sentence imposed on him by the County Court for a charge under the Summary Offences Act 1966. The central issue was whether the sentence of six months imprisonment was manifestly excessive, particularly given the appellant's age, character, and personal circumstances. The appellant argued that the sentence was not only excessive but also failed to take into account his age and background, which should have warranted a lesser penalty.

The court was tasked with determining if the County Court judge had erred in imposing the sentence. The court considered whether the County Court had given proper weight to the appellant's age, personal circumstances, and the principles of sentencing. It was necessary to evaluate whether the sentence was manifestly excessive and whether a lesser penalty would have been more appropriate under the circumstances. The court examined the County Court's reasoning and the evidence presented to assess if the sentence was proportionate and just.

In reaching its decision, the court acknowledged that the County Court judge had considered the appellant's background and personal circumstances, but found that the sentence imposed was still excessive. The court noted that the appellant, despite his age, had a history of similar offending behaviour, which impacted the leniency that might otherwise have been afforded. However, the court concluded that the overall sentence of six months imprisonment was not proportionate to the offence and the appellant's personal circumstances. The appeal was upheld in part, and the sentence was reduced to one month imprisonment, to run concurrently with any other sentences.

Orders

Orders of the court

The appeal is upheld with respect to the sentence imposed on charge 3512 of 2010 and in lieu of a sentence of six months imprisonment, I will impose a sentence of one month imprisonment, which will be concurrent with all other sentences.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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