DPP v Mahoney - [2009] VSC 249

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1707 of 2008

THE DIRECTOR OF PUBLIC PROSECUTIONS

KENNETH PATRICK MAHONEY

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2009
DATE OF SENTENCE:	15 June 2009
CASE MAY BE CITED AS:	DPP v Mahoney
MEDIUM NEUTRAL CITATION:	[2009] VSC 249

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Manslaughter – Dangerous and unlawful act – Serious multiple blows over several hours – Domestic relationship – Breach of intervention order – Alcohol – Prior convictions – Need for specific and general deterrence – Remorse – Guilty plea

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Brown	Solicitor for Public Prosecutions
For the Accused	Mr D. Dann	Littleton Hackford D’Alessandro

HER HONOUR:

Kenneth Mahoney, you have pleaded guilty to the manslaughter of Selina Cecilia Te’nohu Tilley. It is now my duty to impose sentence upon you.

On Wednesday, 28 November 2007, you assaulted and killed your partner, Selina Tilley. She was then 46 years old.

Your relationship began after you met Ms Tilley at a homeless shelter in South Melbourne in August 2006. The two of you later moved to various addresses in the Latrobe Valley. You were both heavy and regular users of alcohol and the relationship seems to have been turbulent.

Your counsel has acknowledged a history of violence in the relationship, predominantly but not entirely inflicted by you, which led to Ms Tilley obtaining an intervention order in February 2007. The intervention order prohibited you from contacting or assaulting her or attending within 50 metres of your Morwell residence. The order was varied in September 2007, to allow you to have contact with Ms Tilley, but was otherwise still in place at the time of the offence.

On Tuesday, 27 November 2007, after a period of drinking by both of you, you fell asleep. You were awoken by Ms Tilley hitting you over the head with what you believe to have been a pot or saucepan. You suffered only minor injuries from her actions, being abrasions and lacerations. You reacted by assaulting Ms Tilley and severely bruising her face. Ms Tilley did not seek any medical attention for the injuries she suffered, nor did she report the assault to police.

The following morning you went shopping with your mother and sister. When asked by your sister about the marks on your head, you told her of the events of the previous day and said that you had "belted into" Ms Tilley. You told your sister you were getting some flowers and vodka for Ms Tilley, to make up for the assault.

After returning from shopping, your sister went into the bedroom and saw Ms Tilley sitting on the bed hugging herself with her arms around her legs. She noticed that Ms Tilley had two big black eyes and a graze on the left side of her forehead with swelling around it. When asked if she wanted to go to the hospital, Ms Tilley said she could not…

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 DPP v Mahoney

Details

AGLC: Director of Public Prosecutions v Mahoney [2009] VSC 249
Case: [2009] VSC 249
Decision Date: 15 June 2009

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Mahoney arose before the Court of Appeal. The appellant, Mahoney, was convicted of manslaughter following the death of his partner. The appellant had inflicted a series of serious blows over several hours. The deceased was found dead at the appellant's home, and the relationship between the parties was intimate. The appellant had also breached an intervention order intended to protect the deceased. The trial judge found that the appellant had acted in a dangerous and unlawful manner, which led to the death, and sentenced him to a term of imprisonment.

The legal issues before the court involved the appropriate sentence for manslaughter in this context. The court had to consider the nature and extent of the violence, the breach of the intervention order, the appellant's alcohol consumption, and his prior criminal history. The appellant pleaded guilty to manslaughter, which was accepted by the prosecution. The court also had to weigh the need for specific and general deterrence and the appellant's remorse. The appeal focused on the length of the sentence, with the appellant arguing it was excessive.

The Court of Appeal, after reviewing the circumstances of the case, determined that the trial judge had correctly identified the relevant aggravating and mitigating factors. The court found that the appellant's actions were both dangerous and unlawful, and the breach of the intervention order added to the gravity of the crime. The appellant's history of violence and alcohol use, along with his lack of remorse, further supported a substantial sentence. The court held that the sentence was appropriate to achieve the purposes of punishment, including deterrence and denunciation. The appeal was dismissed, and the original sentence was upheld.

The final orders of the Court of Appeal confirmed the sentence imposed by the trial judge, rejecting the appellant's contention that it was excessive. The appellant's conviction for manslaughter and the term of imprisonment were affirmed.

Orders