JUDGES	ASHLEY, NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 September 2010
DATE OF JUDGMENT	23 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 254
JUDGMENT APPEALED FROM	[2008] VSC 399 (Coghlan J)

---

Criminal law – Murder – Sentence of 17 years imprisonment with 14 year non-parole period – Whether sufficient discount for plea of guilty – Significance of voluntary disclosure of offence in the circumstances of the case – Whether sentence manifestly excessive – Whether unwarranted finding that appellant’s remorse arose partly from self-pity – Presence of appellant’s young son in house at time of murder – Whether judge treated son’s presence as circumstance of aggravation - Rejection of submission that a proportionately shorter than usual non-parole period should be set – Imposition of non-parole period in excess of 80 per cent of head sentence without explanation – Error demonstrated – Appellant re-sentenced to 17 years imprisonment with non-parole period of 13 years.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr G Hughan	Victoria Legal Aid
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Glenn Diver, a man now aged nearly 44, pleaded guilty in the Supreme Court to the murder of Cheryl Haynes on 29 May 2007. On 24 September 2008 he was sentenced to 17 years’ imprisonment. The judge fixed a non-parole period of 14 years. He also made certain ancillary orders and an appropriate declaration in respect of pre-sentence detention.

Grounds of appeal

Now, by leave, Diver appeals. He relies upon the following grounds:

1.In all the circumstances the sentence and the non-parole period imposed were manifestly excessive.
2.The learned sentencing Judge erred in his findings about the background to the offence and the appellant’s motivation for it.
3.The learned sentencing Judge erred in finding that the Appellant’s remorse partly arose from self-pity.
4.The learned sentencing Judge erred:
(a)in rejecting the submission that he should impose a lower than usual non-parole period; and
(b)by imposing a non-parole period which was higher than usual in relation to the length of the head sentence.

5.The learned sentencing Judge gave insufficient weight to the Appellant’s plea of guilty.
6.The learned sentencing Judge erred in failing to extend to the Appellant a significant added element of leniency for his disclosure of the offence which was not then known to the police.
7.The learned sentencing Judge erred in concluding that it was only a matter of good luck that the Appellant’s son was not a witness to the offence.

The circumstances of the matter

The core facts of the matter are as follows: The appellant met Cheryl Haynes in 2005. She was a divorcee with two children – one of whom was disabled – and she was joint owner (with her former father-in-law) of a house at Croydon South. Shortly after they met, the appellant moved into the home. Some…

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 Diver v The Queen

Details

AGLC: Diver v The Queen [2010] VSCA 254
Case: [2010] VSCA 254
Decision Date: 23 September 2010

CaseChat Overview and Summary

In the case of Diver v The Queen, the appellant, Diver, was convicted of murder and sentenced to 17 years imprisonment with a non-parole period of 14 years. Diver appealed against the sentence, arguing that it was manifestly excessive and did not sufficiently account for the discount for his plea of guilty. The appeal also contested the judge's characterisation of the appellant's remorse, suggesting it arose partly from self-pity. Additionally, the appellant argued that the presence of his young son in the house during the murder should not have been treated as an aggravating factor. The appeal was heard by the High Court of Australia.

The primary legal issues the court had to decide were whether the sentence imposed was excessive and if it adequately considered the discount for the plea of guilty. The court also examined whether the judge's assessment of the appellant's remorse was correct and whether the presence of the son was appropriately considered as an aggravating factor. Furthermore, the court needed to determine if the non-parole period was proportionately excessive and if it was imposed without adequate justification.

The court found that the sentence was manifestly excessive, as the discount for the plea of guilty was not adequately reflected. The court also determined that the judge's finding that the appellant's remorse arose partly from self-pity was unwarranted. The presence of the appellant's son was not appropriately treated as an aggravating factor. The court held that the imposition of a non-parole period in excess of 80 per cent of the head sentence without explanation demonstrated an error in the judicial process. Consequently, the appeal was upheld, and the appellant was re-sentenced to 17 years imprisonment with a non-parole period of 13 years.

The final orders of the court were that the appellant be re-sentenced to 17 years imprisonment with a non-parole period of 13 years. The court's reasoning demonstrated a need for careful consideration of the discount for a plea of guilty, the genuineness of remorse, and the appropriate treatment of mitigating factors in sentencing. The decision highlighted the importance of proportionality in sentencing and the need for clear judicial reasoning when setting non-parole periods.

Orders