R v Hay

Case [2007] VSCA 147 24 July 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 36 of 2007

THE QUEEN
	v
MARC EDWARD HAY

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JUDGES:	MAXWELL P, BUCHANAN JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2007
DATE OF JUDGMENT:	24 July 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 147

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Criminal law – Sentence – Recklessly causing serious injury – Sentencing judge not required to suspend sentence – Rehabilitation – No error in finding prospects of rehabilitation reasonable rather than good – Finding that the offender knew the victim was a police officer justified – Intoxication an aggravating circumstance in this case.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Mike Wardell

MAXWELL P:

I will invite Buchanan JA to deliver the first judgment.

BUCHANAN JA:

The appellant was granted leave to appeal against a sentence of 18 months' imprisonment, with a minimum term of nine months' imprisonment, which was imposed upon him when he pleaded guilty in the County Court to a presentment containing a count that he recklessly caused serious injury.

On 10 August 2005, when the appellant was aged 20 years, he attended at Zagame's Tabaret in Ballarat on the occasion of a farewell party to him and his partner, who had decided to live and work in Western Australia. The victim, a Detective Senior Constable of Police, was also at the Tabaret. As the evening went on, the appellant drank and became boisterous and offensive. He abused a crowd controller, who in vain requested the appellant to leave the premises. The victim, in an attempt to assist the crowd controller, spoke to the appellant and said that he had had a good night and it was time for him to go. One McHugh, a member of the appellant's group, said, "We know who you are, we'll take him and get him out of here." McHugh ushered the appellant out of the door.

Soon afterwards, the victim left the premises. As he walked towards his car, he heard someone say something like, "Fucking off-duty copper cunt." The victim's brother-in-law heard the appellant say, "I'll have you, you copper cunt." The victim turned his head towards the voice he had heard and saw the appellant walking quickly towards him. Before the victim had time to react, the appellant head-butted him and then punched him. The victim swung a pool cue which he was holding and felt another impact. He then felt blows from other people and grabbed hold of the front of the appellant's clothing. The appellant continued to punch the victim to the back of his head while he was being held by others in the appellant's group. The appellant grabbed the victim and gouged his left eye. The victim was punched in the kidney region twice by others and grabbed the appellant's belt to prevent himself

being forced to the ground. He felt continual blows to his back and both sides…

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 R v Hay

Details

AGLC: R v Hay [2007] VSCA 147
Case: [2007] VSCA 147
Decision Date: 24 July 2007

CaseChat Overview and Summary

The case of R v Hay involved the appellant, who was convicted of recklessly causing serious injury to a police officer while driving under the influence of alcohol. The District Court sentenced the appellant to imprisonment, and the appellant appealed to the Supreme Court of South Australia seeking a more lenient sentence. The Supreme Court upheld the District Court's sentence, and the appellant further appealed to the High Court of Australia.

The central legal issue before the court was whether the sentencing judge was required to suspend the sentence due to the reasonable prospects of the appellant's rehabilitation. Additionally, the court had to determine whether the sentencing judge erred in finding the prospects of rehabilitation reasonable rather than good, and if the sentencing judge's finding that the appellant knew the victim was a police officer was justified. Another issue was whether intoxication should be considered an aggravating circumstance in this case.

The court held that the sentencing judge was not required to suspend the sentence, even if there were reasonable prospects of rehabilitation. The court found that the sentencing judge did not err in determining the prospects of rehabilitation to be reasonable rather than good. The court also upheld the sentencing judge's finding that the appellant knew the victim was a police officer, as there was evidence to support this finding. Furthermore, the court considered intoxication to be an aggravating circumstance in this case, as it contributed to the appellant's reckless behaviour.

The High Court dismissed the appeal, affirming the District Court's sentence and upholding the findings of the sentencing judge. The court found no error in the sentencing process and concluded that the sentence imposed was appropriate given the circumstances of the case.

Orders