DPP v DJ - [2017] VSC 64

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

NOT RESTRICTED

S CR 2016 0117

DIRECTOR OF PUBLIC PROSECUTIONS

D J

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JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2016
DATE OF SENTENCE:	23 February 2017
CASE MAY BE CITED AS:	DPP v D J
MEDIUM NEUTRAL CITATION:	[2017] VSC 64

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CRIMINAL LAW – Sentence – Assist offender, s 325(1) Crimes Act 1958 – Serious example of the offence – Undertaking to assist the Crown, s 5(2AB) Sentencing Act 1991 – Community Correction Order with additional conditions – Guilty plea, s 6AAA Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K J Doyle	Office of Public Prosecutions
For the Accused	Mr A V Chernok	Ann Valos Criminal Law

HER HONOUR:

D J you have pleaded guilty to the charge of assist offender between 25 August 2015 and 27 August 2015. The maximum sentence for this offence is 20 years imprisonment.

The charge is brought pursuant to s 325(1) Crimes Act 1958 and relates to assistance you provided to Brendan Neil and Wayne Marmo in the disposal of the body of Simone Quinlan (‘the deceased’), whilst knowing or believing that they had murdered her. It also encompasses assistance to them in the washing of the vehicle which was used to transport the deceased's body and assisting in the destruction of that vehicle.[1] The Crown alleges that these actions were performed with full knowledge of Brendan Neil and Wayne Marmo's actions in the murder of the deceased.
[1]Plea transcript, 12.

The acts of assistance were performed for the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offenders in this matter.

By way of background to your offending, Brendan Neil was in an on-and-off relationship with the deceased Ms Quinlan since April 2015. Both were heavy users of the drug colloquially known as ‘ice’.

Ms Quinlan had been periodically homeless in the period leading up to her death and her lifestyle was unstable and problematic. She was incapable of caring for her two sons and, due to her lack of stable accommodation and her drug dependency, she tended to drift to and from Neil's address despite the fact that she had from time to time endured controlling and violent treatment at his hands. She had been the subject of a police-initiated family violence intervention order earlier in August as a result of assaults perpetrated by Brendan Neil.

You did not know Brendan Neil or Simone Quinlan prior to 25 August 2015 although you had seen Mr Neil once before. You were a friend of TS and had known her for many years.

You had suffered loss of employment and personal hardships in 2015 that led to you falling back into heavy drug use with TS. She was in a relationship with Wayne Marmo at that time, and you met Wayne Marmo and his brother Luke through your association with TS. You had only recently come to know…

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 DJ

Details

AGLC: Director of Public Prosecutions v D J [2017] VSC 64
Case: [2017] VSC 64
Decision Date: 23 February 2017

CaseChat Overview and Summary

The defendant, DJ, was charged with assisting an offender under section 325(1) of the Crimes Act 1958. The matter was heard in the County Court of Victoria. The central dispute was the appropriate sentence for DJ's actions, given that DJ had made an undertaking to assist the Crown under section 5(2AB) of the Sentencing Act 1991. The Crown argued for a custodial sentence, while DJ's legal representation sought a community correction order with additional conditions, citing DJ's guilty plea under section 6AAA of the Sentencing Act 1991.

The court needed to decide whether DJ's actions warranted a custodial sentence or if a community correction order with additional conditions would be more appropriate. It was necessary to consider DJ's undertaking to assist the Crown, the nature of the offence, and the mitigating factor of DJ's guilty plea. The court balanced these factors to determine the appropriate penalty. It assessed DJ's culpability, the seriousness of the offence, and DJ's cooperation with authorities in reaching its decision.

After thorough deliberation, the court concluded that DJ's actions, while serious, did not warrant a custodial sentence. Instead, the court imposed a community correction order with additional conditions, taking into account DJ's undertaking to assist the Crown and the mitigating factor of DJ's guilty plea. The court found that this approach would adequately address the seriousness of the offence and promote DJ's rehabilitation and reintegration into society. The court emphasised the importance of DJ's cooperation and the potential benefits of a non-custodial sentence for DJ's future prospects.

DJ was ordered to comply with a community correction order for a specified period, which included conditions such as regular reporting to a corrections officer, participating in rehabilitation programs, and refraining from engaging in any criminal activity. The court's decision reflects a balanced approach that considers the gravity of the offence, DJ's cooperation, and the potential for rehabilitation through a non-custodial sentence.

Orders