R v McMenomy - [2008] VSCA 62

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 417 of 2007

THE QUEEN
	v
BRENDAN McMENOMY

---

JUDGES:	MAXWELL P and BUCHANAN and VINCENT JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 April 2008
DATE OF JUDGMENT:	17 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 62

---

Criminal law – Sentence – Intentionally causing injury – Agreement between prosecution and defence that appellant was culpable as aiding and abetting the principal offender – Sentencing judge erred in stating the agreement was not legally tenable – Withdrawal from agreement by the prosecution – Sentencing judge failed to take into account period of incarceration resulting from breach of parole – Appellant re-sentenced.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Victoria Legal Aid

MAXWELL P:

I will invite Buchanan JA to deliver the first judgment.

BUCHANAN JA:

On 22 August 2005, the appellant was a passenger in a car driven by Matthew Andy in Berwick. Andy's car braked heavily to avoid a collision with a car driven by Michael Curry. Both cars stopped. Curry alighted from his car and was immediately attacked by Andy, who grabbed Curry in a headlock and dragged him to the ground. Andy punched and kicked Curry to the head and body. The appellant and another passenger in Andy's car, Darren McDonald, also kicked and punched Curry, or at least one or other of them did. The principal offender was Andy. Cars stopped and people approached the assailants, who ran to their car and drove off.

As a result of the attack, Curry suffered cuts, bruising and swelling to the face and body, dizziness and a severe headache. He has been unable to drive a motor car. As he is a sales representative and uses his car in the course of his work, this has affected his ability to earn income.

A jury found McDonald guilty of recklessly causing injury. Andy pleaded guilty to a charge of intentionally causing injury. Andy was sentenced to be imprisoned for a term of 24 months with a minimum term of nine months. It was directed that the sentence be served concurrently with the sentence which Andy was then undergoing. McDonald was sentenced to be imprisoned for a term of 12 months with a minimum term of four months. The sentence was directed to be served concurrently with the sentence which McDonald was then undergoing.

The appellant pleaded guilty in the County Court to one count of intentionally causing injury. After a plea, he was sentenced to be imprisoned for a term of 14 months with a minimum term of six months' imprisonment. It was ordered that the sentence be served cumulatively upon any sentence the appellant was currently serving. Accordingly, the appellant will be eligible to be released on parole in October 2008.

The appellant is now 24 years old. He was educated to year 9 and then worked as a labourer. Although the appellant…

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 McMenomy

Details

AGLC: R v McMenomy [2008] VSCA 62
Case: [2008] VSCA 62
Decision Date: 17 April 2008

CaseChat Overview and Summary

In the matter of R v McMenomy, the appellant, a party to the proceedings, faced a criminal charge concerning the intentional infliction of injury. The case was heard in a higher court within the Australian judicial system. The dispute centred on the appropriate sentence to be imposed on the appellant, who had been convicted of aiding and abetting the principal offender in causing the injury. A crucial point of contention was whether the agreement reached between the prosecution and defence regarding the appellant's culpability was legally tenable. Additionally, the court had to consider whether the sentencing judge had properly accounted for the time the appellant had already spent in custody due to a breach of parole.

The legal issues that arose in this case primarily revolved around the enforceability of the agreement between the prosecution and defence regarding the appellant's role in the offence. The court had to determine whether the sentencing judge was correct in asserting that the agreement was not legally binding. Furthermore, the court had to consider whether the judge had adequately taken into account the period of incarceration the appellant had already served due to a breach of parole, and whether this should impact the final sentence. The appellant's legal team argued that the withdrawal of the agreement by the prosecution and the failure to consider the time already served by the appellant in custody constituted errors in the sentencing process.

The court found that the sentencing judge had erred in asserting that the agreement between the prosecution and defence was not legally tenable. The judge also failed to take into account the period of incarceration that resulted from the breach of parole. Consequently, the court determined that the appellant should be re-sentenced. The court emphasised the importance of adhering to agreements between the prosecution and defence and ensuring that all relevant factors are considered in determining an appropriate sentence. The court's decision in this case highlights the need for careful consideration of all aspects of a defendant's circumstances when determining an appropriate sentence.

Orders