R v McHarg

Case [2011] NSWCCA 115

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales
Case Title: R v McHarg
Medium Neutral Citation: [2011] NSWCCA 115
Hearing Date(s): 23 February 2011
Decision Date: 25 May 2011
Jurisdiction:   Criminal  
Before:

Whealy JA at 1
Hidden J at 2
Johnson J at 3
Decision:

Orders made on 25 May 2011 (as amended under the slip rule)
Crown appeal allowed with respect to the third count only.
Sentence imposed upon the Respondent at the Parramatta District Court for the third count on 24 September 2010 is quashed.
In lieu thereof, the Respondent is sentenced to a non-parole period of two years and six months commencing on 27 January 2011 and expiring on 26 July 2013, with a balance of term of 18 months commencing 27 July 2013 and expiring on 26 January 2015.
The earliest date upon which the Respondent will be eligible for release on parole is 26 July 2013.
Order made on 12 August 2011
Order made under s.7(1A)(a) Criminal Appeal Act 1912 varying commencement and expiration dates of sentence imposed for the fourth offence (robbery in company) so that the sentence of imprisonment for a fixed term of three years commenced on 27 April 2009 and will expire on 26 April 2012

Catchwords:

CRIMINAL LAW - sentence - Crown appeal - serious offences of violence committed over 10-month period - young adult offender subject to conditional liberty - whether sentence for reckless wounding in company manifestly inadequate - whether total effective sentences for all offences manifestly inadequate - held that sentence for reckless wounding in company was manifestly inadequate - total effective sentences lenient but not manifestly inadequate - approach to sentence for offences of violence against pizza delivery driver - approach to sentence for offences against persons using public transport system at night - relevance of youth - importance of general deterrence - offender resentenced for reckless wounding in company
Legislation Cited:

Criminal Appeal Act 1912
Law Enforcement (Powers and Responsibilities) Act 2002
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited:

R v JW [2010] NSWCCA 49; 199 A Crim R 486
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Hristovski v R [2010] NSWCCA 129
R v Dunn [2004] NSWCCA 346
Mill v The Queen [1988] HCA 70; 166 CLR 59
Johnson v The Queen [2004] HCA 15; 205 ALR 346
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
House v the King [1936] HCA 40; 55 CLR 499
Hili v The Queen [2010] HCA 45; 85 ALJR 195

Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 456
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
R v Ferenc [2009] NSWCCA 126
Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500
Allen v…

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AGLC
R v McHarg [2011] NSWCCA 115
Case
[2011] NSWCCA 115
Decision Date

CaseChat Overview and Summary

The case of R v McHarg involved the respondent, McHarg, who was subject to a Crown appeal concerning the sentences imposed for a series of serious violent offences committed over a 10-month period. The respondent, a young adult, was already under conditional liberty when these offences were committed. The appeal focused on whether the sentence for the offence of reckless wounding in company and the overall sentences for all offences were manifestly inadequate.

The primary legal issues the court needed to decide were whether the sentence for the reckless wounding in company offence was manifestly inadequate, and whether the total effective sentences for all the offences were lenient to the point of being manifestly inadequate. The court had to consider the severity of the offences, the respondent's age, and the need for general deterrence in setting appropriate sentences.

In addressing these issues, the court acknowledged that while the sentence for the reckless wounding in company was lenient, it was not manifestly inadequate. However, the court found that the total effective sentences, although lenient, did not reach the level of being manifestly inadequate. The court emphasised the importance of considering the specific circumstances of each offence, the respondent's youth, and the need for general deterrence in violent crimes, particularly those involving public transport users at night and pizza delivery drivers. Consequently, the court resentenced the respondent for the offence of reckless wounding in company.

The court's final orders involved the resentencing of the respondent for the offence of reckless wounding in company, while affirming that the total effective sentences for all offences were not manifestly inadequate. This decision highlighted the balance the court must strike between leniency and deterrence in sentencing young offenders for violent crimes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HIDDEN J JOHNSON J JA, HIDDEN AND JOHNSON JJ
Whilst acknowledging that the sentence imposed for the reckless wounding in company offence was lenient, Mr Smith submitted that it was not manifestly inadequate. Decision In approaching these grounds of appeal, it is necessary to keep in mind his Honour's alteration of an original fixed term of imprisonment for three years for this offence, later transformed into a non-parole period of 18 months with a balance of term of 18 months. Although his Honour's attention was drawn to the terms of s.45(1) which required that a non-parole period be fixed, it is not at all clear that his Honour had initially selected the fixed term of three years upon the basis that that period should be the equivalent of the non-parole period, in accordance with what was said in R v Dunn and Hristovski v R . His Honour was aware of the standard non-parole period for this offence and had made a finding concerning the objective seriousness of the offence. I agree with Mr Smith that the real complaint by the Crown with respect to this offence is that contained in Ground 2, namely that the non-parole period and the total sentence for this offence were manifestly inadequate. It is to that ground that I now turn. It is the case that a diverse range of offending behaviour is capable of constituting an offence under s.35(3) Crimes Act 1900 . It is necessary to consider the particular circumstances of this case. The sentencing Judge's finding was, in reality, one that the offence lay at about the mid-range of objective seriousness or just below it. That finding is not challenged by the Crown on this appeal. This offence was committed in the early hours of 8 February 2009. At that time, the Respondent was subject to conditional liberty by way of bonds imposed on 11 February 2008 (for offences including being in custody of a knife in a public place), on 7 April 2008 and 27 November 2008. In addition, on 2 February 2009, the Respondent had been fined $300.00 in the Liverpool Local Court for an offence of being in custody of a knife in a public place. The facts of the third offence suggest a degree of planning where the victim, Mr Donno, was requested by the Respondent and his co-offender to travel from Bondi Beach to meet up with them in the Liverpool area. Having met, they travelled to the co-offender's house at Lurnea. Alcohol and cannabis were consumed. Thereafter, the Respondent, the victim and others walked to a park at Lurnea. In the centre of the park, the victim was confronted by the Respondent and two other men. The Respondent questioned the victim about being a "snitch" with respect to the first offence committed a few days before. The victim was punched to the head by one of the men. The Respondent and Boyden commenced to punch and kick the victim to the head and body. The victim was knocked to the ground a couple of times, but regained his feet. During the assault, the Respondent stabbed the victim once in the back around the left shoulder and twice in the upper thigh. An appropriate inference is that the victim was sufficiently injured in the attack so that he staggered a relatively short distance before collapsing, thereafter requiring medical assistance.

Ratio Decidendi

Legal Principle Established

Established by: HIDDEN J, JOHNSON J, JA, HIDDEN AND JOHNSON JJ

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