R v McHarg - [2011] VSC 5

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

Nos. 41 and 42 of 2010

THE QUEEN

DARRYL JOHN McHARG

and

WAYNE ANTHONY ARTHUR

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2011
DATE OF SENTENCE:	2 February 2011
CASE MAY BE CITED AS:	R v McHarg & Anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 5

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CRIMINAL LAW – Sentencing – Intentionally causing serious injury – Death of victim – No homicide count laid - Pleas of guilty – Significant personal circumstances – Consequent sensitivity concerning sexual assault of children – Irrational conclusion leading to offending – R v AWF (2000) 2 VR 1.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D’Arcy	Office of Public Prosecutions
For the Accused McHarg	Ms C. Gwynn	Slades and Parsons
For the Accused Arthur	Mr D. Hallowes	Patrick W Dwyer

HIS HONOUR:

Darryl John McHarg and Wayne Anthony Arthur, you have both pleaded guilty to one count of intentionally causing serious injury. The count to which you have pleaded guilty involved an incident which occurred at a boarding house at 116 Loongana Avenue, Glenroy in the early hours of 8 March 2009.

The maximum penalty for the offence of intentionally causing serious injury is 20 years’ imprisonment.

Circumstances of offending

The victim of both your actions was Shaun Patrick Moloney. Mr Moloney later died as a result of what occurred after this offence had been committed by both of you. Mr Moloney was 46 years of age and he, as well as the two of you, lived in the boarding house at 116 Loongana Avenue.

The evidence indicates that you, Darryl McHarg, lived at that address with your girlfriend Casey Sant, and her son, Blake Galea, who was then six years of age. You, Wayne Arthur, were living there on your own.

In the early hours of 8 March 2009, you, Darryl McHarg, went to the room occupied by Shaun Moloney and became involved in an argument with him. You, Wayne Arthur, also entered the room and the argument involving the three of you developed into a physical confrontation. In the course of that confrontation both you, McHarg, and then later you, Arthur, at McHarg’s urging punched Mr Moloney in the face, the lower torso and to the side of the head, and the result of that was that he was rendered unconscious.

In a report prepared by the pathologist Dr Malcolm Dodd on 11 May 2009 in relation to a post-mortem he carried out on Mr Moloney on 8 March 2009, he said that there was evidence of blunt force trauma to the head, neck and chest. He identified sub-dural and sub-arachnoid haemorrhaging and bruising to the neck, which are likely to have been the product of your assault on Mr Moloney.

The two of you and Mr Moloney had been drinking to excess prior to this incident occurring, and the level of alcohol in the blood of Mr Moloney was of the…

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 McHarg

Details

AGLC: R v McHarg [2011] VSC 5
Case: [2011] VSC 5
Decision Date: 2 February 2011

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v McHarg involved the defendant, McHarg, who had pleaded guilty to charges related to intentionally causing serious injury to a victim, which ultimately led to the victim's death. The court was tasked with determining an appropriate sentence for McHarg, who faced no homicide charge. The case brought to light significant personal circumstances of McHarg, including a sensitivity towards the sexual assault of children, which had irrationally influenced his actions.

The primary legal issue before the court was the appropriate sentencing for McHarg, considering the intentional nature of his actions and the resulting death of the victim. The court needed to weigh McHarg's personal circumstances, his plea of guilty, and the aggravating factors of the offence, including the vulnerability of the victim. The court also needed to determine the relevance and weight to be given to McHarg's sensitivity to the sexual assault of children as a mitigating factor.

In delivering its decision, the court found that McHarg's personal circumstances, particularly his sensitivity to the sexual assault of children, were significant but did not excuse his actions. The court acknowledged the mitigating effect of McHarg's guilty plea but emphasised the gravity of the offence and the resulting death of the victim. The court concluded that McHarg's actions, though influenced by his sensitivity, were not rational and led to an irrational conclusion that resulted in the victim's death. Ultimately, the court determined an appropriate sentence for McHarg, balancing the aggravating and mitigating factors in the context of the offence and the relevant legal principles.

The final orders of the court included a detailed sentencing statement, outlining the considerations that led to the determination of the appropriate sentence for McHarg, reflecting the court's thorough examination of the case and the legal issues involved.

Orders