DPP v Closter - [2014] VSC 484

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0142

THE DIRECTOR OF PUBLIC PROSECUTIONS

DYLAN JOHN CLOSTER

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 11 August 2014
DATE OF SENTENCE:	2 October 2014
CASE MAY BE CITED AS:	DPP v Closter
MEDIUM NEUTRAL CITATION:	[2014] VSC 484

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CRIMINAL LAW – Sentencing – Manslaughter – Affray – Accused instigated a violent, unprovoked public attack on other youths – Accused chased and punched deceased, as he was trying to back away – Guilty plea – Remorse – Youthful offender – Good prospects of rehabilitation – Total effective sentence of 9 years 3 months’ imprisonment with a non-parole period of 6 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Tinney SC	Solicitor for Public Prosecutions
For the Accused	Mr J Hannebery	Balmer & Associates

HER HONOUR:

Dylan John Closter, you have pleaded guilty to one charge of manslaughter and one charge of unlawfully making an affray.[1]
[1]The maximum sentence for manslaughter is 20 years’ imprisonment; the maximum for affray is 5 years’ imprisonment.

The charges arose out of a violent incident which took place at Rye in the early hours of Monday 31 December 2012, which left David Cassai dead and five of his friends injured.

On Sunday 30 December, you spent the evening with some friends, including your co-accused, Tyrone Russell and Thomas McCluskey (also known as McCluskey-Sharp). After having a few drinks at the caravan park where you were staying, you had dinner at the Rye Hotel, before spending time at the Rye carnival. After the carnival closed, your group moved to an area near the Rye pier, where you were joined by others. You left briefly around 11.00 pm, to buy a bottle of Galliano liqueur; you returned to the group and drank the bottle with a few of your friends.

There were a number of groups of young people near the Rye foreshore that night. One of these groups included David Cassai and nine of his friends. They were strangers to you and your group.

The Cassai group had been celebrating a birthday at the Portsea Hotel. They had been drinking, and were in varying stages of intoxication. They left Portsea on a bus at 12.30 am, heading for Rosebud, where they were staying. However the bus only went as far as Rye, so they proposed to walk the rest of the way. Around 12.45 am, they started walking along Point Nepean Road, towards Rosebud, spreading out into smaller groups as they walked. They were on the other side of the road to your group.

As they walked along past the shops, one of Mr Cassai’s friends, Jesse Smith, removed a street sign from its bracket. He trotted along for a while, carrying the sign like a lance or spear, towards the front of his group; he was trying to be funny. Some of Mr Smith’s friends asked him to put the sign…

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 Closter

Details

AGLC: DPP v Closter [2014] VSC 484
Case: [2014] VSC 484
Decision Date: 2 October 2014

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Closter, the accused was convicted of manslaughter and affray following a violent, unprovoked attack on other youths in a public place. The case was heard in a court of appeal in Australia. The key issue before the court was the appropriateness of the sentence imposed on the accused, who had pleaded guilty to the charges. The court had to consider the nature and circumstances of the offence, the accused's remorse, and his prospects of rehabilitation, as well as the principle of proportionality in sentencing.

The court examined the facts of the case, including the accused's role in instigating the violent attack, the manner in which he pursued and assaulted the deceased, and the deceased's attempt to retreat. The court also considered the accused's guilty plea, his expression of remorse, and his status as a youthful offender with good prospects of rehabilitation. In determining the appropriate sentence, the court was mindful of the need to balance the interests of justice, deterrence, and rehabilitation.

After careful consideration, the court concluded that the total effective sentence of 9 years and 3 months' imprisonment, with a non-parole period of 6 years, was appropriate. The court found that the sentence reflected the gravity of the offence, while also taking into account the accused's remorse, his youth, and his potential for rehabilitation. The court emphasised the importance of proportionality in sentencing and the need to ensure that the sentence was commensurate with the seriousness of the crime.

The court confirmed the sentence imposed by the lower court, with the non-parole period set at 6 years. The court recognised the significant impact of the offence on the victim and their family, as well as the importance of holding the accused accountable for their actions. The court also acknowledged the accused's expression of remorse and his prospects of rehabilitation, which were factors in mitigating the sentence. Overall, the court determined that the sentence imposed was just and appropriate in the circumstances.

Orders