R v McHarg & Arthur [2011] VSC 5

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

3 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.

4 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.

5 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.

6 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.

7 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 order of 0.51%, which, as Dr Dodd indicated, would impair a person's reflexes and his ability to resist physical force. It is also possible that the alcohol was a part of the cause of this man's death.

8 It is appropriate at this stage to note that the basis on which you have both pleaded guilty to the offence of intentionally causing serious injury is that you will be sentenced for what occurred during the course of the assault at the boarding house in Glenroy, and not for any subsequent conduct or in any respect on the basis that either or both of you caused the death of Mr Moloney. The prosecution accepts that you should be sentenced on the basis I have described. Bearing in mind that certain issues were raised about this matter by Coghlan J on 22 November 2010, I am satisfied that your pleas of guilty are unequivocal and the process is not being abused.[1] I will therefore sentence both of you on the factual basis outlined by the Crown and your counsel.

9 Investigations into this matter commenced after the body of Mr Moloney was discovered and on 10 March 2009, police officers went to the boarding house where the two of you and Mr Moloney had lived and where this incident took place, and obtained statements. You, Darryl McHarg, told police that you had not seen Shaun Moloney since 5 March 2009, and you, Wayne Arthur, told police that you had not seen him since Friday 6 March 2009. In both cases, obviously they were lies.

10 Both of you were arrested by police on Thursday, 26 March 2009, and you, Darryl McHarg, were interviewed by the Homicide Squad. It is mainly on the basis of what you said in the course of answers in that record of interview that the case is presented by the prosecution against you.

11 In the course of that record of interview, you described Shaun Moloney talking about the games that he played with children and with the son of your girlfriend, Casey Sant. As I earlier noted the child's name is Blake. You described Shaun Moloney talking about it and continuing to talk about it despite you wanting him to be quiet and, since he continued to talk about it over your objections, you hit him in the side of his body. You also described hitting him in the side of the head and you recalled blood coming out of his ear. Your conclusion had been that Shaun Moloney had been in some way sexually interfering with Blake, and your sensitivity to such things is based on your own personal history, to which I will return shortly.

12 In the rest of your interview, you described Arthur assaulting Moloney, and then described the way in which you and he set about disposing of what you thought was a deceased person.

13 Ultimately, what is known is that Mr Moloney was placed in the rear of your station wagon and then driven to the Strathmore area, where he was dumped and later found to be alight.

14 You, Wayne Arthur, were also interviewed by police but it is common ground that such interview would not have been admissible against you on your trial. However, there is evidence about your role in this matter from the evidence given by Ms Casey Sant. Further you have pleaded guilty and your counsel, Mr Hallowes, has referred to the instructions you have given him about the matter. It seems that you accepted the somewhat irrational assertion made by Mr McHarg that Mr Moloney had been sexually exploiting the child Blake in some way, though there was no real basis to have that opinion.

15 Darryl HcHarg, you can be regarded as having pleaded guilty to this offence at an early opportunity and given what I have heard on your behalf, I am satisfied that your plea, at least in part, reflects remorse on your part for what you have done. I am likewise satisfied that your plea of guilty, Wayne Arthur, includes an element of remorse. However, as Mr D'Arcy points out that is tempered by the fact that for a period of time immediately after the commission of the offence you both committed, you sought to avoid responsibility for what you had done.

16 In the course of a detailed and helpful plea, Ms Gwynn of counsel outlined what, on any view, is a very difficult personal history. The effect on you of your "markedly disordered" background is described by Mr Danny Sullivan in a report he compiled on 19 November 2010. You were born on 25 July 1978 and at the time of your birth your mother was 16 years of age. You had no actual family life to speak of, due to your mother and father's dysfunctional lifestyle. As you understand it, your father was killed in 1984 in the violent conflict between motor cycle gangs at Milperra in Sydney. As a child you suffered significant abuse. At the age of three, I am informed, you were involved as a subject in the taking of pornographic photographs.

17 The gross abuse and neglect inflicted on you resulted in you being placed in the care of your maternal grandmother for a number of years. Your grandmother was, as Dr Danny Sullivan described it in his report, a "disordered, cruel and abusive" woman, and the abuse of you continued. You were made a Ward of the State at the age of 11 or 12, although you were also in regular contact with your grandparents and you were returned on at least one occasion to live with your grandmother.

18 Your education lasted until 1993, when you were in Year 8. You were sexually and emotionally abused throughout your childhood and, as Ms Gwynn has submitted, substance abuse and a personality disorder were the inevitable consequences.

19 You have had several psychiatric hospitalisations in Queensland and in Victoria, which you attribute to a drug-induced psychosis. Your drug use has involved alcohol from the age of 11, amphetamines from the age of 17 and cannabis from the age of 19. During your teenage years, you also used heroin. Dr Sullivan has diagnosed a mixed personality disorder with antisocial and borderline elements. He also has diagnosed poly-substance abuse and dependence in relation to each of cannabis, alcohol, heroin and amphetamines. In particular, Dr Sullivan has concluded that there is a connection between your personality disorder and the commission of this offence. This particularly relates to your preoccupation that Mr Moloney was sexually abusing your girlfriend's child (though there is no evidence at all to indicate that he was), which in turn arises from your own sensitivity about such matters given your own background as a victim of such conduct. I take that connection into account in fixing your sentence.[2]

20 During her plea, Ms Gwynn set out in some detail a description of you as being firm in your resolve to deal with the issues which confront you. It appears that, during your pre-sentence detention at Port Phillip Prison, you have done such as you can to seek the assistance to deal both with your anger management and drug and alcohol issues. You have, as Ms Gwynn suggested, used your time wisely as a remand prisoner and you are now in the trusted position of a billet. You have had counselling from Ms Melissah Stubbs from the Department of Corrections and, at the time of your plea, you were about to embark on a cognitive skills program over a period of 12 weeks, which was to commence in the third week of January 2011.

21 You have also expressed a desire to establish a relationship with your daughter, Dakota, who was born sometime after the incident for which you are being sentenced. Ms Gwynn submits, and I agree, that your desire to establish a relationship with Dakota and be a good father to her may provide an additional reason for you to avoid re-offending when released from prison.

22 You also have a significant prior criminal history. You have prior convictions in Western Australia, Queensland and South Australia, many of which involve the driving of a motor vehicle, but also include assault, damage to property and aggravated assault. Those offences occurred between 1998 and 2007. In Victoria between 2005 and 2010, you have previous convictions for, among other things, assault, assaulting police, assault by kicking, threatening to kill, carrying a controlled weapon without an excuse, criminal damage, theft and a variety of motor car offences. You have served time in custody on several occasions, but your pre-sentence detention in relation to this matter is the longest period that you have been imprisoned.

23 You, Wayne Arthur, were born on 8 August 1959 and are therefore now 51 years of age.

24 You have only one previous conviction, which was for intentionally or recklessly causing injury and resisting police. That was on 5 June 1996, and you were fined $800 without conviction. Whilst, of course, the offence is relevant, it stands in isolation and occurred some 15 years ago.

25 A report which was provided to me by Mr Hallowes on your behalf from Dr Mark Ryan who is a consultant psychiatrist, dated 30 September 2010, indicates that you are now a disability support pensioner with a long history of treatment-resistant epilepsy.

26 You were born and raised in suburban Melbourne and you have three brothers and three sisters with whom you have almost no contact. Your parents are both still alive and were present at Court during the hearing of your plea. You maintain contact with them. As a young child, you suffered from meningitis and have developed epilepsy. Beyond that, you do not seem to have had difficulty with psychological or psychiatric disorders, and you do not have a history of illicit substance abuse. According to Dr Ryan's report, you were an occasional binge drinker, but you did not drink continuously.

27 Dr Ryan has concluded in his report that, as a result of your chronic treatment-resistant epilepsy, you have suffered considerably through your life, particularly as a young person. He considers that you are somewhat isolated and socially marginalised, and now, as a prisoner, are somewhat vulnerable.

28 You were said by authorities to have had a "psychotic" episode which resulted in two admissions to the Thomas Embling Hospital and you were given anti-psychotic medication, but Dr Ryan is not of the view that you are psychotic. He allows for the possibility, as I read his report, that you may have Asperger's Syndrome, which is a variant of autism, or you are suffering some form of condition as a result of your meningitis and epilepsy.

29 You are single and have no children. You have had a fairly limited work history. Mr Hallowes submitted on your behalf that your history has resulted in you being a vulnerable prisoner and that custody has not been, and will not be, easy for you. He also submitted that you are not an inherently violent person. That seems to be true.

30 Both of your counsel submitted that the offending to which you have pleaded guilty is at the middle to lower end of the scale of offending for the offence of intentionally causing serious injury. Both Ms Gwynn and Mr Hallowes pointed out that the offending was relatively spontaneous and did not involve the use of a weapon, nor, for that matter, does the evidence support a finding of any use of feet by way of kicking or stomping. It was the result of a belief held by both of you that there had been some sexual interference by Moloney with the daughter of Ms Sant.

31 However, as the prosecutor, Mr D'Arcy, correctly pointed out, this was an offence in which two of you assaulted Shaun Moloney in circumstances where he was on his own to defend himself and had clearly consumed so much alcohol that he was incapable of doing so. As Dr Dodd pointed out, he was likely to be unable to resist in any way the physical blows to which he was subjected by the two of you and which you accept caused him serious injury. I would regard your offending as serious and certainly not at the low end of the range.

32 It has been submitted by counsel for both the Prosecution and Defence that there is no basis on which to separate your sentences. I have no reason to disagree with that. In all the circumstances, the least sentence that I could impose on each of you is a sentence of six years and six months' imprisonment. In each case, I order that you serve a minimum period of three years and six months' imprisonment before being eligible for release on parole. Pursuant to s 6AAA of the Sentencing Act, I indicate that, had it not been for your plea of guilty, the sentence I would have imposed would have been a sentence of eight years' imprisonment with a minimum period to be served before eligibility for release on parole of five years.

33 I declare that Mr McHarg's pre-sentence detention is 558 days including this day and Mr Arthur's pre-sentence detention is 680 days including this day, and I direct that that be entered in the records of the Court.

34 Coghlan J has already made the orders for forfeiture and forensic sample. They do not need to be made again.

[1] See Maxwell v R (1995-6) 184 CLR 501

[2] See R v AWF [2000] VSCA 172; (2000) 2 VR 1