‘A momentary lapse of reason’: Man avoids conviction for fracturing skull in CBD


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A 25-year-old man was fined $3500 but did not receive a conviction for punching another man in the head, leaving him with a fractured skull after a fight on Lydiard Street in March 2019. According to Magistrate Tim Walsh, Benjamin Mcarthur’s character references “could not be more impressive”, and it was apparent he is “the sort of son every parent dreams about”. He said “it’s not in the view of justice to record a conviction”, but Mcarthur, a site foreman, “will never hear a magistrate or judge say that again if you trouble the courts”. Mcarthur faced alternate charges of recklessly causing injury and recklessly causing serious injury – Mr Walsh said based on the evidence, he was not satisfied beyond reasonable doubt to find Mcarthur guilty of causing a serious injury. The victim suffered “one of the worst skull fractures” a doctor had ever seen, Mr Walsh said, and it was “by good luck and not good management” that Mcarthur was not “in the County Court dock”. “You don’t know who David Hookes is – he was hit in the head and he died,” he told Mcarthur. “When I was growing up in Reservoir, the neighbourhood bully … when he was in year nine, his best mate (at school) they had an argument, so they went down to the creek to sort it out like men, there was a punch, his mate fell and hit his head on a rock, and he died. “He was charged with manslaughter, and acquitted. “I bumped into him when he was 40, he was a gibbering drug-addled mess – he never got over it.” Mcarthur’s defence lawyer David Tamanika said “the finding of guilt has a punitive aspect in itself”, moving for a financial penalty and to withhold a conviction. “A conviction would really only bring him down – (the accused) made a silly, tragic, serious mistake,” he said. “We’ve seen an immediate display of remorse (after the incident), he’s of good character.” Police prosecutor Sergeant Aimee Heal said while a financial penalty was in range for a sentence, she recommended a conviction. She tendered a victim impact statement and precedents from two Supreme Court of Appeal cases. “The victim and witnesses have gone through two years of stressful delays,” she said. “(The cases) regard violent crime in the community, fighting near bars and licenced premises, and the effect it has on the community to enjoy these places without fear of this happening.” “Every parent has fears for their children when they go out that something like this might happen, I’ve had some sleepless nights,” Mr Walsh replied. Mr Walsh determined the punch was not in self defence, and met the criteria for being reckless. “The nub of it, to paraphrase Pink Floyd, it was a momentary lapse of reason with serious consequences,” he said. IN THE NEWS He added he considered a sentence that included a community corrections order, but decided against it. “I don’t want you on crews with drug users, because some people lay down with dogs and wake up with fleas, we don’t want that for you,” he said. Have you signed up to The Courier’s variety of news emails? You can register below and make sure you are up to date with everything that’s happening in Ballarat.



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