DPP v McGill - [2008] VSC 499

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1403 of 2007

THE DIRECTOR OF PUBLIC PROSECUTIONS

DARREN JOHN McGILL

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 & 15 AUGUST, 12 & 26 SEPTEMBER, 22 OCTOBER 2008
DATE OF SENTENCE:	18 NOVEMBER 2008
CASE MAY BE CITED AS:	DPP v McGILL
MEDIUM NEUTRAL CITATION:	[2008] VSC 499

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CRIMINAL LAW – Sentence – Manslaughter – Death of fellow boarder – Penetrating stab wounds intersecting the right lung and the aorta at its juncture with the heart – Plea of guilty – Remorse – Major depressive illness of moderate severity – Effect on sentence – Sentence of seven years’ imprisonment – Minimum six years - Effect of s 6AAA of Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Lincoln	Stuart Ward, Acting Solicitor for Public Prosecutions
For the Defendant	Mr J. Sutton	Rainer Martini & Associates

HIS HONOUR:

Craig Hinton died on 9 December 2006. You, Darren McGill, have pleaded guilty to his manslaughter. The maximum penalty for manslaughter is 20 years' imprisonment. In your case, the act by which the crime was constituted was not only a conscious and voluntary act on your part but was also one that was unlawful and dangerous. Dangerous, that is, in the sense that a reasonable person in your position must have realised that Mr Hinton was thereby exposed to an appreciable risk of serious injury.

It is of course relevant to note the context in which the fatal assault occurred. I take this in part from the prosecutor's opening, with reference also to the submissions made by your counsel about that opening.

For some six months or so before 9 December 2006, you had been a resident at a boarding house in Middleborough Road, South Blackburn. Mr Hinton became a resident there in about October that year. He occupied room 2, while you had been allocated room 6. Each of you had a female companion. One of them, Kylie Thompson (Mr Hinton's partner) was also a resident at the boarding house. The other, Dianne Minnie, had in the days leading up to the fatal incident shared your room. But your relationship with her was of weeks only, whereas Mr Hinton and Ms Thompson had been together for two years or thereabouts.

The two women had known each other for about the same period. Their relationship, however, was strained to the point of real bitterness. Both you and Mr Hinton were drawn into the enmity between them.

On 2 December, Ms Minnie threw a brick through Ms Thompson's window. This form of diplomacy did nothing to ease the tension in the boarding house - which was further heightened when the broken window was reported to the police. You and Ms Minnie formed the belief, it seems with justification, that Ms Thompson was the informer; or, as the residents of the boarding house described anybody who went to the police in…

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 McGill

Details

AGLC: Director of Public Prosecutions v McGill [2008] VSC 499
Case: [2008] VSC 499
Decision Date: 18 NOVEMBER 2008

CaseChat Overview and Summary

In the Supreme Court of Victoria, the Director of Public Prosecutions brought proceedings against McGill, who had pleaded guilty to the manslaughter of a fellow boarder. The incident resulted in penetrating stab wounds that intersected the right lung and the aorta at its juncture with the heart. The case focused on determining an appropriate sentence, taking into account the mitigating factors of McGill's plea of guilty, his expression of remorse, and his major depressive illness of moderate severity. The legal issues centred on how these factors should influence the sentencing decision and the application of section 6AAA of the Sentencing Act 1991.

The court considered the severity of the offence and the mitigating factors presented. The defendant's plea of guilty and expression of remorse were acknowledged as significant factors that could reduce the sentence. The court also examined the impact of McGill's major depressive illness on his culpability and the circumstances of the offence. The court balanced these mitigating factors against the gravity of the offence, which involved a fatal stabbing. The court noted the mandatory minimum sentence of six years for manslaughter under section 6AAA of the Sentencing Act 1991 and determined that a sentence of seven years' imprisonment, with a non-parole period of six years, was appropriate.

The court found that the sentence of seven years' imprisonment, with a non-parole period of six years, was commensurate with the severity of the offence and the mitigating factors presented. The court acknowledged McGill's remorse and the impact of his major depressive illness but emphasised the need to balance these factors with the public interest in deterrence and denunciation. The court was satisfied that the sentence imposed reflected the appropriate punishment for the offence while also taking into account the mitigating circumstances.

The court ordered that McGill be sentenced to seven years' imprisonment, with a non-parole period of six years. The sentence was to commence from the date of his remand in custody. The court made no orders regarding any other aspects of the case, including the disposal of any property or any ancillary matters.

Orders