R v Mahoney - [2019] VSC 740

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0112

THE QUEEN

KENNETH PATRICK MAHONEY

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2019
DATE OF SENTENCE:	13 November 2019
CASE MAY BE CITED AS:	R v Mahoney
MEDIUM NEUTRAL CITATION:	[2019] VSC 740

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CRIMINAL LAW – Sentence – Manslaughter – Unlawful and dangerous act – Plea of guilty – Punched deceased twice to the head and face – Accused intoxicated – Mid range of seriousness – Prior conviction for manslaughter – Culpability lessened due to childhood disadvantage and abuse – Alcoholism – Remorse – Admissions – Poor prospects of rehabilitation – Mental illness – Custody more burdensome – General deterrence and denunciation – Specific deterrence – Community protection – Sentenced to 11 years’ imprisonment with non-parole period of 8 years – Bugmy v The Queen (2013) 249 CLR 571 – R v Verdins (2007) 16 VR 269 – Crimes Act 1958 – Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. French	Office of Public Prosecutions
For the Accused	Mr J. D. Williams Ms C. Lloyd	Papa Hughes Lawyers

HIS HONOUR:

Introduction

Kenneth Patrick Mahoney, on 18 March 2019 you pleaded guilty to the manslaughter of David Charles Tweedly. You pleaded guilty on the basis of manslaughter by an unlawful and dangerous act, in that you punched Mr Tweedly twice to the head and face.

The maximum penalty for the offence of manslaughter is 20 years’ imprisonment. It is a category 2 offence pursuant to s 3 of the Sentencing Act 1991.

Circumstances of the offending

On 18 October 2017 around lunchtime, you went to the College Lawn Hotel in Prahran and consumed alcohol with friends. Shortly after 5pm, you returned to ‘The Regal’ boarding house in Little Grey Street, St Kilda, where you were living, and continued to consume alcohol, becoming heavily intoxicated.

Shortly before 7:30pm, you walked to ‘The Beach House’ boarding accommodation, located less than 100 m from The Regal. CCTV footage shows that you kicked the gate of the premises at the same time Mr Tweedly was leaving, and the two of you engaged in a brief verbal exchange before Mr Tweedly walked off and you entered the residence. A few moments later, you exited the gate and pursued Mr Tweedly for around 20 paces along Little Grey Street. He turned to face you and you immediately punched him to the head, making contact with the left side of his face near his ear. He tried to push you off and attempted to walk away, but you punched him again hard. This second blow was a ‘haymaker’ style punch that struck the left side of his face, causing his head to recoil sideways. He stumbled several steps before he lost balance and fell to the ground. CCTV footage shows that he did not strike his head on the road during the fall. Following this assault, you threw your…

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 Mahoney

Details

AGLC: R v Mahoney [2019] VSC 740
Case: [2019] VSC 740
Decision Date: 13 November 2019

CaseChat Overview and Summary

In the case of R v Mahoney, the accused faced sentencing for manslaughter following a plea of guilty. The deceased was fatally injured after being punched twice to the head and face by the accused, who was intoxicated at the time of the incident. The matter was heard and determined in the Supreme Court of Victoria. The court was required to consider a range of legal issues, including the seriousness of the offence, the circumstances of the accused, and the objectives of sentencing, including general deterrence, denunciation, specific deterrence, and community protection. The court also had to take into account the accused's prior conviction for manslaughter, his childhood experiences of disadvantage and abuse, his alcoholism, and his remorse for the offence. Despite the accused's poor prospects of rehabilitation and his mental illness, the court found that custody would be more burdensome than other forms of punishment. Ultimately, the court sentenced the accused to 11 years' imprisonment, with a non-parole period of 8 years. The court's reasoning and decision were guided by relevant case law, including Bugmy v The Queen and R v Verdins, as well as statutory provisions such as the Crimes Act 1958 and the Sentencing Act 1991.

Orders