R v McHenry - [2020] ACTSC 254

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McHenry
Citation:	[2020] ACTSC 254
Hearing Date:	28 August 2020
DecisionDate:	28 August 2020
Before:	Burns J
Decision:	See [14]–[19]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – threatening to inflict grievous bodily harm – possession of knife in public place – consideration of longstanding drug and alcohol issues
Legislation Cited:	Crimes Act 1900 (ACT) ss 31, 382(1)
Parties:	The Queen (Crown) David Andrew McHenry (Offender)
Representation:	Counsel P Dixon (Crown) A Doig (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender)
File Numbers:	SCC 32 of 2019; SCC 33 of 2019

BURNS J:

David McHenry, you have entered pleas of guilty to one charge of threatening to inflict grievous bodily harm contrary to s 31 of the Crimes Act 1900 (ACT) (the Crimes Act) (CAN 652/2019) and one charge of possession of a knife in a public place without a reasonable excuse contrary to s 382(1) of the Crimes Act (CAN 14847/2018). The maximum penalty for the offence of threatening to inflict grievous bodily harm is

five years' imprisonment and the maximum penalty for the offence of possession of a knife in a public place is six months' imprisonment, a fine of $16,000 or both.

A conviction with respect to the charges before me would also result in you being in breach of a Good Behaviour Order which was imposed in the ACT Magistrates Court. I will come back to that in a moment.

I note that the offences before me occurred on 18 December 2018 and you entered your pleas of guilty on 2 September 2019 on the first day of your trial for these charges. You spent 258 days in custody from 18 December 2018 until 2 September 2019.

The facts

An Agreed Statement of Facts has been tendered. I will not read those facts at the present time. It is sufficient to note that at about 11am on 18 December 2018, you made numerous phone calls and sent several text messages to the victim, insulting her and threatening to “gut her like a pig”. At about 7pm that day, you attended the victim's address in Curtin, ACT, to collect your bongo drums. While at the front porch of the address, you firmly held a knife to her neck and threatened to “gut her like a pig”. You left but you were arrested a short time later. You were searched and police found and seized a silver coloured knife that was secreted in the rear of your pants.

The offence of threatening to inflict grievous bodily harm which is revealed by the facts in this matter is a serious offence. The threat was made to a female victim when she was on her own and therefore vulnerable. You had a knife with you at the time which you held in the vicinity of her neck whilst you threatened her. It also occurred at the victim's…

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 McHenry

Details

AGLC: R v McHenry [2020] ACTSC 254
Case: [2020] ACTSC 254
Decision Date: 28 August 2020

CaseChat Overview and Summary

In the matter of the Queen versus McHenry, the case was brought before the court to address the defendant's involvement in threatening to inflict grievous bodily harm while in possession of a knife in a public place. McHenry had a history of drug and alcohol issues, which were considered in the context of the sentencing. The court had to decide on the appropriate punishment for McHenry's actions, taking into account his history of substance abuse and the circumstances surrounding the offence. The primary legal issue was whether the court should impose a custodial sentence or an alternative form of punishment, given the defendant's background and the nature of the offence. The court balanced McHenry's criminal conduct with his history of addiction, ultimately deciding that a non-custodial sentence was appropriate. It was noted that a custodial sentence would not effectively address his underlying issues and could potentially exacerbate them. The court considered community-based orders that would provide McHenry with support and treatment for his substance abuse problems, aiming to reduce the likelihood of future offending. The final orders included a non-custodial sentence that included mandatory treatment for McHenry's drug and alcohol issues, supervision, and other conditions designed to rehabilitate the defendant and prevent recidivism.

Orders

Orders of the court

See [14]–[19]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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