DPP v Connally

[2010] VSCA 301

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0223

DIRECTOR OF PUBLIC PROSECUTIONS
	Applicant
v
ADRIAN RUSSELL CONNALLY	Respondent

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JUDGES:	NETTLE and HANSEN JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2010
DATE OF JUDGMENT:	11 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 301
JUDGMENT APPEALED FROM:	[2009] VSC 452 (Kaye J)

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CRIMINAL LAW – Sentencing – Crown appeal – Undertaking to give evidence against alleged co-offender – Whether respondent failed to fulfil undertaking to ‘tell the truth’ – Whether respondent entitled to benefit of mitigation afforded by sentencing judge – Respondent sentenced to be of good behaviour for three years – Appeal allowed – Respondent re-sentenced to a total effective sentence of two years’ imprisonment wholly suspended for 30 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr P J Hannebery	Tony Hannebery Lawyers

NETTLE JA:

1. This is an appeal by the Director of Public Prosecutions under s 567(1A) of the Crimes Act 1958 against a sentence, that the respondent be released to be of good behaviour for three years, imposed on the respondent on 25 September 2009 on pleading guilty to one count of being an accessory to murder. 

1. Before he was sentenced, the respondent made a statement to police concerning his involvement in the murder and the involvement of his alleged co-offenders, Michael Patrick Flaherty and Clinton Dwayne McRae.  During his plea, the respondent gave evidence that the statement was true, and he undertook ‘to give evidence in accordance with that statement at any upcoming trial involving Mr McRae’ and ’to give evidence to tell the truth’.

1. In his sentencing remarks, the judge said that, but for respondent’s plea of guilty and co-operation with the Crown, the judge would have imposed a term of imprisonment of two years wholly suspended for three years.

1. The appellant contends that the respondent failed to honour his undertaking to give evidence in accordance with his statement and to tell the truth and that the sentence imposed on the respondent should therefore be increased.

The respondent’s statement

1. In his statement, the respondent described the roles of Flaherty and McRae in the murder of the deceased as follows:

1)      At the farmhouse, Flaherty snatched the shotgun from the respondent and said words in substance or to the effect of ‘Come on let’s go.  Let’s get rid of this dog.’  Flaherty also made mention of the bloke not being able to rape his girl again.

2)      Flaherty said:  ‘Get in the car don’t ask questions and you won’t get hurt’.

3)      On getting into the 4WD, respondent did not know what to do ‘but the way they were carrying on, I thought that I’d have to get in the car or else they would get stuck into me’.

4)      Flaherty (in possession of the shotgun) was in the front passenger seat and McRae was standing…