McVittie v R [2015] NSWCCA 92

McVittie v R [2015] NSWCCA 92

The later psychiatric report was not received because the applicant had not shown a basis for admitting it as fresh evidence and the mental illness issue had been known and addressed by reports at sentence. On the evidence before the sentencing judge, it was open to find continuing residual psychotic symptoms, limited insight, lack of genuine remorse, uncertainty about rehabilitation and a real danger to the community. The judge's rejection of the remorse evidence was open, including because the applicant's letter accused the victim of lying and understated the offending. Given the serious sustained violent attack and the aggravated kidnapping taken into account, the sentence was not...

Jurisdiction
Australia
Judgment Date
13 May 2015
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['wound With Intent to Cause Grievous Bodily Harm' 'aggravated Kidnapping Taken Into Account on Sentence' 'fresh Evidence on Sentence Appeal' 'rehabilitation Prospects' 'psychosis and Danger to the Community' 'remorse' 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Appeals'] ['wound With Intent to Cause Grievous Bodily Harm' 'aggravated Kidnapping Taken Into Account on Sentence' 'fresh Evidence on Sentence Appeal' 'rehabilitation Prospects' 'psychosis and Danger to the Community' 'remorse' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the Court should receive and consider a treating psychiatrist's report dated after sentence as fresh evidence on appeal." "Whether the sentencing judge erred by not being confident about the applicant's rehabilitation and by treating him as a real danger to the community." 'Whether the sentencing judge erred by finding that the applicant remained psychotic or delusional at the time of sentencing.' 'Whether the sentencing judge erred by not accepting that the applicant was remorseful.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The later psychiatric report was not received because the applicant had not shown a basis for admitting it as fresh evidence and the mental illness issue had been known and addressed by reports at sentence. On the evidence before the sentencing judge, it was open to find continuing residual psychotic symptoms, limited insight, lack of genuine remorse, uncertainty about rehabilitation and a real danger to the community. The judge's rejection of the remorse evidence was open, including because the applicant's letter accused the victim of lying and understated the offending. Given the serious sustained violent attack and the aggravated kidnapping taken into account, the sentence was not...

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal dismissed.']