appellant. 7 days' imprisonment, declared already served by pre-sentence detention; offender to be released immediately.
Key principles
Where an offender has served approximately 550 days in pre-sentence custody (described as 'dead time'), a sentence of 7 days' imprisonment is appropriate for a charge of threaten...
The extensive pre-sentence custody already served is the determinative factor in reducing what would otherwise be a fine (for a first offender) to a nominal custodial sentence...
A utilitarian discount of 50% is appropriate for the plea of guilty, reducing the sentence from 14 days to 7 days' imprisonment.
Issues before the court
What is the appropriate sentence for a charge of threaten to damage property where the offender has served extensive pre-sentence custody?
What utilitarian discount should be applied for a plea of guilty?
Cited legislation
No linked legislation citations have been extracted yet.
Plain English Summary
Bradley McGrath was sentenced for threatening to damage property. Although he had a criminal history and the offence carries up to 5 years in prison, the judge gave him a 7-day sentence because he had already spent about 550 days in custody waiting for his case. The judge said this waiting time was 'dead time' that couldn't be recovered. The judge also gave him a 50% discount for pleading guilty, meaning he would have got 14 days otherwise. Mr McGrath was released immediately as he had already served the 7 days.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Catchwords
Threat to damage property
Judgment (1 paragraphs)
[1]
Mr McGrath, you have heard what I have said about this. You pleaded guilty to one charge of threaten to damage property. You have a criminal history that includes lots of street level offences. You have not been in trouble since 2016. This relationship you had with Kelly O'Connor was clearly a troubled one and you obviously plan to return to where you were living at the time you were arrested. Is it back with your ex-partner?
OFFENDER: Yeah.
HIS HONOUR: All right.
OFFENDER: (Indistinct words.) I've got my dog there.
HIS HONOUR: Is your dog still there?
OFFENDER: Yes.
HIS HONOUR: After 550 days or whatever?
OFFENDER: (Indistinct words.)
HIS HONOUR: All right, I wonder if he recognises - he or she?
OFFENDER: He.
HIS HONOUR: He. All right. Well, it is threatening people to damage people's property is an offence that carries five years' imprisonment. If this were your first offence I would fine you but given that you have had 550 days approximately in custody, the appropriate disposition it seems to me - it is dead time for you, it is just gone - is to sentence you to seven days' imprisonment. I declare that that has already been served by way of pre‑sentence detention.
Pursuant to s6AAA of the Sentencing Act1991 I indicate that but for your plea of guilty I would have imposed 14 days' imprisonment.
All right, you are now - as far as I am concerned - you are free to leave the dock.
VOICE (from body of the court): We have to process paperwork.
HIS HONOUR: I don't know what that means.
VOICE: I think he has to - well it's got to go through the Sentencing Council and everything like that and we also have to take him back to give him his goods and his bits and pieces from downstairs.
HIS HONOUR: And he'll be released today?
VOICE: Should be, providing all the paperwork goes through no problems.
HIS HONOUR: All right. Take him down and release him today.
VOICE: Yes.
HIS HONOUR: There's no basis to hold him any longer as far as I'm concerned. All right, thank you.
Parties
Applicant/Plaintiff:
DPP
Respondent/Defendant:
McGrath [2023] VCC 1208
AI Analysis
Outcomeappellant
Disposition:
7 days' imprisonment, declared already served by pre-sentence detention; offender to be released immediately.