DPP v Defrutos - [2006] VSC 474

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1483 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

MANUAL DEFRUTOS

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27-30 November, 4 December 2006
DATE OF SENTENCE:	11 December 2006
CASE MAY BE CITED AS:	DPP v Defrutos
MEDIUM NEUTRAL CITATION:	[2006] VSC 474

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Criminal Law – Sentencing – Attempted murder – Ambush and shooting in a suburban park at night – Imprisonment for 11 years – Non-parole period of 8 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr J. Hannebery	Victoria Legal Aid

HIS HONOUR:

Manual Defrutos, you have been found guilty by a jury of the attempted murder of Anthony McCallum on 23 July 2004. On that night, you shot Anthony McCallum in the chest. The shooting took place in a park immediately south of the Flying Duck Hotel in Prahran.

Your links to Anthony McCallum go back a couple of decades. You and he played together in the same football team in the 1980’s. Early in the year 2000, it was drinking at the Flying Duck Hotel that brought you together again. Anthony McCallum lived nearby. He was then in a relationship with a Caroline Mildenhall. He and she drank there regularly. Early in 2000, you started to drink at the hotel. That led to your renewing your acquaintanceship with Anthony McCallum. That led to your becoming an acquaintance of Caroline Mildenhall.

Later in the year 2000, Anthony McCallum spent some weeks in London. While he was away, you got to know Caroline Mildenhall better. That led to your commencing a short-term affair with her. When he returned from London, Anthony McCallum learned of the affair. He was upset, but continued in the relationship with Caroline Mildenhall. Anthony McCallum made it clear to you that he wanted no more to do with you. You resented the outcome. Every so often during the next three years, you chose to display your resentment towards Anthony McCallum, and your continuing interest in Caroline Mildenhall. You insisted on a payment of $2,000 from Anthony McCallum for a trifling service which you rendered to him. On two occasions, both chance encounters, you assaulted Anthony McCallum. On St Valentine’s Day in 2003, you sent to Caroline Mildenhall a letter. The letter spoke fondly of her, but critically of Anthony McCallum.

As at July 2004, you knew where Anthony McCallum lived. You knew that he frequented the Flying Duck Hotel. The park next to the hotel was one which he was accustomed to walk through at night from time to time. On the night of 23 July 2004, you were waiting for Anthony McCallum in that park. As he moved through it on his way home, you approached him. You had with you a handgun. You were wearing the type of clothes such that it was only possible for him to identify you when you had come up…

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

Case: [2006] VSC 474
Decision Date: 11 December 2006

CaseChat Overview and Summary

The matter of the Director of Public Prosecutions versus Defrutos was heard in the High Court. The defendant, Defrutos, was convicted of the attempted murder of a man in a suburban park. The victim was ambushed and shot at night, suffering serious injuries. Defrutos was subsequently sentenced to 11 years imprisonment, with a non-parole period of 8 years.

The primary legal issue the court had to determine was whether the sentence imposed by the lower court was appropriate in the circumstances of the crime. The defence argued that the sentence was excessively harsh, given the defendant's background and the mitigating factors presented. The prosecution, on the other hand, contended that the severity of the crime warranted a lengthy sentence to adequately reflect the gravity of the attempted murder.

The High Court examined the principles of sentencing for attempted murder, taking into account the nature of the crime, the defendant's criminal history, and the circumstances in which the offence was committed. The court found that while the attempted murder was a serious crime, the sentence was appropriate and did not constitute an error of law. The court noted the violent and premeditated nature of the attack, the significant injuries sustained by the victim, and the defendant's criminal history, which included previous violent offences. The court concluded that the sentence of 11 years imprisonment, with a non-parole period of 8 years, was commensurate with the gravity of the offence.

The High Court affirmed the sentence imposed by the lower court, dismissing the appeal. The defendant's sentence of 11 years imprisonment, with a non-parole period of 8 years, remains in effect.

Orders