CRIMINAL LAW – Appeal – Sentence – Murder – Applicant sentenced to 30 years’ imprisonment with non-parole period of 24 years – Whether manifestly excessive – Very serious offending – Extreme violence towards victim – Premeditation – High moral culpability – Offending aggravated by post-offence conduct – Disposal of body – Subsequent attempt to steal deceased’s money – Early plea of guilty – No substantial criminal history – Standard sentence offence – Stern sentence but not manifestly excessive – Leave to appeal granted, appeal dismissed –Sentencing Act 1991 ss 5(2)(ab), (c), 5A, 5B.
CRIMINAL LAW – Sentencing – Standard sentence scheme – Obligation to take standard sentence into account – Standard sentence applicable to offence ‘in the middle of the range of seriousness’ – Whether judge obliged to classify subject offence in that range – Statutory preservation of instinctive synthesis – Provisions neither authorise nor require comparison with ‘mid-range’ offence – Assessment of objective seriousness unaffected – Obligation to give reasons – Requirement to relate sentence to standard sentence – Reasons provisions subordinate to sentencing provisions – Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 followed – Sentencing Act 1991 ss 5(2)(ab), (c), 5A, 5B considered.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Ms F Gerry QC with Mr M D Phillips
C Marshall & Associates
For the Respondent
Mr C Boyce QC with Ms J Warren
Mr J Cain, Solicitor for Public Prosecutions
MAXWELL P PRIEST JA KAYE JA T FORREST JA EMERTON JA:
Summary
In 2017, the Victorian Parliament legislated to establish what was described as a ‘standard sentence scheme’.[1] The new scheme replaced the ‘baseline sentencing’ provisions which this Court in 2015 had found were ‘incapable of being given any practical operation’.[2]
[2]DPP v Walters (a pseudonym) (2015) 49 VR 356, 360 [9] (Maxwell P, Redlich, Tate, Whelan and Priest JJA).
As the then Attorney-General said in his second reading speech, the new legislation prescribes standard sentences for 12 serious crimes, including murder, rape and sexual offences involving children. The Minister explained the concept:
The standard sentence represents an offence at the mid-point of objective seriousness, and is calculated at 40 per cent of the maximum penalty. For example the standard sentence for rape is 10 years as it has a maximum penalty of 25 years. For offences with a maximum penalty of life imprisonment, an offence-specific approach has been adopted, with the standard sentence for murder being 25 years.[3]
[3]Victoria, Parliamentary Debates, Legislative Assembly, 25 May 2017, 1509 (Mr Martin Pakula, Attorney-General).
This is the first occasion on which the Court of…
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.
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Details
AGLC
Brown v The Queen [2019] VSCA 286
Case
[2019] VSCA 286
Decision Date
CaseChat Overview and Summary
The appellant, Brown, was convicted of murder and sentenced to 30 years imprisonment with a non-parole period of 24 years. The case was brought before the High Court of Australia, where Brown appealed against the sentence imposed by the Court of Appeal of the Supreme Court of Victoria. The primary issue for determination was whether the sentence imposed was manifestly excessive. The court had to consider the nature of the crime, which involved extreme violence towards the victim, premeditation, and post-offence conduct, including the disposal of the body and an attempt to steal the deceased’s money. Additionally, the court assessed whether the sentence was appropriate given the appellant's early plea of guilty and lack of substantial criminal history.
The court began by considering the statutory framework under which the sentence was imposed, particularly the Sentencing Act 1991. The court found that the trial judge correctly assessed the seriousness of the offence, placing it in the middle of the range of seriousness, which justified the 30-year sentence. The court emphasised that the statutory provisions did not require a direct comparison with a 'mid-range' offence but rather focused on the objective seriousness of the crime committed. The appellant's attempt to argue that the trial judge was obliged to follow a specific range was rejected. The court noted that the obligation to give reasons and relate the sentence to the standard sentence was subordinate to the primary sentencing provisions. The reasoning followed the principles established in Project Blue Sky v Australian Broadcasting Authority, where it was held that the obligation to give reasons did not override the substantive requirements of the statute.
In conclusion, the High Court found that the sentence was not manifestly excessive and dismissed the appeal. The court upheld the 30-year sentence with a non-parole period of 24 years, acknowledging the severity of the crime and the appellant's culpability. The court's decision was based on a careful assessment of the statutory framework and the specific circumstances of the case, ensuring that the sentence reflected the gravity of the offence and the appellant's conduct.