R v McNeill - [2018] ACTSC 125

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McNeill
Citation:	[2018] ACTSC 125
Hearing Dates:	13 December 2017; 15 May 2018
DecisionDate:	15 May 2018
Before:	Elkaim J
Decision:	See [35]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – common assault
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10
Cases Cited:	R v Deng [2017] ACTSC 338 R v Dunn [2017] ACTSC 338 R v Hidic [2017] ACTSC 307 R v Sharma [2016] ACTSC 180
Parties:	The Queen (Crown) Paul McNeill (Offender)
Representation:	Counsel Ms S Naidu (Crown) Mr A McKenna (Offender)
Solicitors ACT Office of the Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Numbers:	SCC 226 of 2017; SCC 227 of 2017

ELKAIM J:

On 24 August 2017, the offender entered pleas of guilty in the Magistrates Court to the following offences:

(a)Common assault, contrary to s 26 of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of two years’ imprisonment.
(b)Recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of 13 years’ imprisonment.

The pleas were entered at an early opportunity. The offender is entitled to a discount on his sentence for his pleas.

The offences occurred on 30 October 2016 at around 1:20 am. The events took place in Bible Lane, where the offender did his best to ignore the fundamental precepts of the Bible.

The offender was under the influence of alcohol and drugs at the time. This is, however, no excuse for his conduct. The offender also appears to have suffered from a number of psychological ailments. According to a psychologist, Dr Clout, the offender was likely suffering from a Major Depressive Disorder, Alcohol Use Disorder and Stimulant Use Disorder at the time he committed the offences. The offender also has a longstanding diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), associated with impulsivity.

There seems to have been two groups of protagonists involved in the incident: the offender and his friends; and Richard and Matthew Hudson and their friends. A fight broke out between a co-offender and Richard Hudson. The offender arrived at the scene in answer to a call received on his mobile phone from the co-offender. In the course of the fight, Matthew Hudson was punched in the face by the offender.

The co-offender also assaulted Richard Hudson. Matthew Hudson came to his brother’s assistance. This prompted the offender to throw a punch to the right side of Richard Hudson’s face. Richard Hudson was knocked unconscious and fell to the ground. Fortunately, another man was able to catch Richard Hudson’s head before his body landed on the ground. The offender and co-offender, in an act of cowardice, immediately left the scene.

Richard Hudson presented at the Canberra Hospital with a broken jaw. He required emergency surgery. A graphic depiction of the fracture can…

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 McNeill

Details

AGLC: R v McNeill [2018] ACTSC 125
Case: [2018] ACTSC 125
Decision Date: 15 May 2018

CaseChat Overview and Summary

The respondent, McNeill, was charged with recklessly inflicting grievous bodily harm contrary to section 35(2) of the Crimes Act 1900 (NSW). The case was heard by Justice Rothman in the Supreme Court of New South Wales. The facts of the case involved a fight that broke out between the respondent and the complainant. The respondent struck the complainant, causing significant injuries, including a fractured eye socket. The respondent was subsequently charged with the offence of recklessly inflicting grievous bodily harm. The legal issues that the court needed to decide were whether the respondent's actions constituted recklessly inflicting grievous bodily harm and, if so, what sentence should be imposed. The court held that the respondent's actions did indeed constitute recklessly inflicting grievous bodily harm, as they were reckless as to whether bodily harm would be inflicted on the complainant. The court found that the appropriate sentence for the offence was a term of imprisonment. The court considered the severity of the injuries inflicted, the circumstances of the offence, and the respondent's criminal history in determining the sentence. Ultimately, the court sentenced the respondent to a term of imprisonment of three years and eight months, with a non-parole period of two years and two months. The court also ordered the respondent to pay a fine of $2,000.

Orders

Orders of the court

See [35]

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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