R v McIntosh [2008] VSCA 242

Court of Appeal (Vic)|2008-12-05|Before: KELLAM and DODDS-STREETON JJA and, HARGRAVE AJA

The application for leave to appeal against sentence is granted.
The appeal is treated as instituted and heard instanter and is allowed.
The sentence imposed below is quashed and, in lieu thereof, the appellant is sentenced as follows.

The appellant is to be placed on a Community Based Order to commence on 5 December 2008 and to end on 4 December 2010.
The program conditions of the Community Based Order that are to apply are as follows.
1. That the appellant is to be under the supervision of a community corrections officer.
2. That the appellant is to undergo assessment and treatment for alcohol or drug addiction and submit to medical, psychological or psychiatric assessment and treatment as directed by the Regional Manager.
3. That, subject to Div 6 of Part 3 of the Sentencing Act 1991, the appellant is to participate in the services specified in his Justice Plan.

131 I have read the reasons for judgment of Dodds-Streeton JA and agree that, for the reasons which she gives, the appeal should be allowed and the applicant re-sentenced as her Honour proposes. In particular, I agree that the sentencing judge did not err as contended for on behalf of the applicant and that it is only the new evidence, which of course was not before the sentencing judge, which justifies the appeal being allowed.

[4] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[8] (Unreported, Court of Criminal Appeal NSW, 18 March 1993) .

[12] R v Mirrim Charles Bux [2002] VSCA 126; (2002) 132 A Crim R 395, 402.

[15] R v Wise [2007] VSCA 266 [16].

[20] This order was made pursuant to s 80(1) of the Sentencing Act 1991.

CRIMINAL LAW - Intellectually disabled applicant convicted of attempted armed robbery - Escalation of applicant's offending - Applicant's remorse - Whether sentencing considerations of R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269 applicable and, if so, taken into account - Whether community protection required incarceration - Admission of new evidence relevant to appropriate disposition.

It can be accepted that intellectual disablement may be equated with mental illness [R v Williams [2000] VSCA 174], this enlivening in a particular case considerations mentioned in R v Tsiaras [[1996] 1 VR 398] and in R v Verdins [[2007] VSCA 102]. But the question will always be whether, in the particular case, it has been shown that the accused person's moral culpability, or the significance of general or specific deterrence, is reduced because of intellectual disablement.[15]

This Court accedes very sparingly to applications of this kind. Applications for leave to appeal are dealt with on the basis that, unless the sentencing judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by a reference to the matters available to be considered by the judge at the time that he determines upon the sentence.

However, it is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court's reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.

It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below: see Prior [1966] VicRp 64; [1966] VR 459; Tutchell [1979] VicRp 24; [1979] VR 248; Martin (unreported, Court of Criminal Appeal, Vic, 19 March 1990).

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