JUDGES: PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 19 April 1999
DATE OF JUDGMENT: 20 July 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 105

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CRIMINAL LAW – Sentencing – Murder, attempted murder and armed robbery – Crown appeal – Whether judge bound to deny eligibility for parole – Sentence imposed for attempted murder manifestly inadequate – Double jeopardy – Principles applicable to fixing non-parole period – Sentencing Act 1991, s.11(1).

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APPEARANCES: Counsel Solicitors
For the Appellant Mr. J. Rapke P.C. Wood, Solicitor for
Public Prosecutions
For the Respondent Mr. P.F. Tehan, Q.C. Michael McNamara &
and Mr. G. Thomas Associates

PHILLIPS, C.J.:

I would gratefully adopt the accounts of the proceedings and evidence in this matter which appear in the judgment of Callaway, J.A., which judgment I have read in draft form. The resolution of ground 1 requires identification of the relevant circumstances and an examination of the face of the sentence imposed on count 3. In the course of that identification I have noted the following:

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The learned judge found that count 3 was premeditated. (His Honour stated, addressing the respondent, “It is difficult to see how, if you were to carry out such a robbery, you could do it in any way other than by shooting the people who knew you.” The magazine of the pistol used by the respondent contained eight rounds, all of which were expended.)

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The learned judge found the facts of count 3 to be part of the “gruesome details” outlined to him by the Crown prosecutor. Those details were that the victim in the count, Mrs Pin, was seized by the respondent after he first presented the pistol at her husband and son. He then released her when he forced those persons to the safe in the premises. Mrs Pin went to another office where she was again seized by the respondent and brought back to the main office. Her husband and son were shot in her presence by the respondent. Then, while still holding her with his left hand, he shot her in the leg and breast. Neither of these shots were fatal. He then moved to the safe where the men had fallen to the ground and twice shot the son in the neck and twice shot the father in the left upper arm. At this point, each of the two men had been shot three times and Mrs Pin twice. The respondent started to remove some gems from the safe but then went to a doorway where Mrs Pin was lying on the floor. Using the pistol, he hit her on the head on ten separate occasions. So violently did he strike, that a piece of the butt of the pistol broke. After beating the two men with the pistol and removing gems, the respondent returned to where Mrs…

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 DPP v Adajian

Details

AGLC: DPP v Adajian [1999] VSCA 105
Case: [1999] VSCA 105
Decision Date: 20 July 1999

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Adajian, the respondent, who had been convicted of murder, attempted murder, and armed robbery, appealed the sentence imposed by the lower court. The appeal was focused on the sentencing for the crime of attempted murder and whether the sentence was manifestly inadequate. Additionally, the case raised questions about the applicability of double jeopardy principles and the criteria for determining the non-parole period under the Sentencing Act 1991.

The primary legal issues the court needed to address were whether the judge was constrained to deny eligibility for parole, the adequacy of the sentence for attempted murder, and the principles guiding the determination of the non-parole period. The court examined the statutory framework provided by section 11(1) of the Sentencing Act 1991 and assessed whether the sentence for attempted murder was disproportionately lenient when compared to the gravity of the crime.

The court concluded that the sentence imposed for the attempted murder was indeed manifestly inadequate. It found that the sentencing judge had not sufficiently considered the principles guiding the determination of a non-parole period, particularly the need to ensure the sentence reflects the seriousness of the offence. The court held that the judge was not strictly bound by the double jeopardy principle when reassessing the sentence. It determined that the appropriate non-parole period should be fixed, taking into account the severity of the attempted murder and the need for general deterrence. The court ordered a new sentencing hearing to address these considerations.

The final orders included a direction for a new sentencing hearing to impose an appropriate sentence for the attempted murder, ensuring that it aligns with the statutory principles and reflects the seriousness of the offence. The court also clarified the principles for determining the non-parole period, emphasising the need for proportionality and general deterrence in sentencing.

Orders