CRIMINAL LAW – Appeal – Sentence – Crown appeal – Murder – Rape – Brutal and random public attack – Respondent sentenced to 36 years’ imprisonment with 30 years non-parole – Whether sentence manifestly inadequate – Whether life imprisonment only sentence reasonably open – Respondent 20 at time of offending – Aboriginal heritage – Profound childhood deprivation and trauma – Personality disorder – Reduced moral culpability – Fair prospects of rehabilitation with appropriate treatment, support and supervision – Sentence within range reasonably open – Appeal dismissed – Bugmy v The Queen (2013) 249 CLR 571, R v Verdins (2007) 16 VR 269, Brown v The Queen [2020] VSCA 212 applied – DPP v Todd [2020] VSCA 46 distinguished – Sentencing Act1991 ss 1(d)(iv), 5(2).
WORDS AND PHRASES – ‘nature and gravity of the offence’ – ‘offender’s culpability and degree of responsibility’ – ‘moral culpability’.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Ms K Judd QC with Ms M Mahady
Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent
Mr T Marsh
Victorian Aboriginal Legal Service
For Victoria Legal Aid (as amicus curiae)
Ms J Munster and Ms D McCann
Victoria Legal Aid
MAXWELL P KAYE JA NIALL JA T FORREST JA EMERTON JA:
Summary
Aiia Maasarwe was only 21 when the respondent (‘CH’)[1] raped and murdered her in the early hours of the morning on 16 January 2019. The sentencing judge (Hollingworth J) described Ms Maasarwe as ‘a friendly, optimistic, kind, young woman, who had her whole adult life ahead of her. She was a loving and much-loved member of the Maasarwe family …’. As the judge said, her death has profoundly affected her parents and her three sisters, leaving ‘an enormous hole in their lives’.[2]
[1]The abbreviation is used for ease of reference not anonymity.
The crimes which CH committed were deeply shocking, both for their sheer brutality and for their randomness. CH made a savage and sustained attack on Ms Maasarwe. He struck her to the head with a metal pipe, rendering her unconscious; he then dragged her from the footpath and forcefully raped her; finally, he struck her head repeatedly, with severe force, causing catastrophic injuries. He acted, the judge found, ‘with the clear intention of killing her, not merely injuring her’.[3]
[3]Ibid [16].
The crimes were also seemingly inexplicable. CH was a young man — 20 at the time of the offending — with no prior convictions and no history of violence. He had never met Ms Maasarwe, and there was no evidence that there had been any particular ‘trigger’ for…
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
AGLC
Director of Public Prosecutions v Herrmann [2021] VSCA 160
Case
[2021] VSCA 160
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions filed an appeal against the sentence of a respondent who had been convicted of murder and rape. The respondent was sentenced to 36 years in prison, with a non-parole period of 30 years. The appeal centred around the question of whether the sentence was manifestly inadequate and whether life imprisonment was the only sentence reasonably open. The respondent, who was 20 years old at the time of the offence, had a background of profound childhood deprivation and trauma, along with an Aboriginal heritage and a diagnosed personality disorder. These factors were argued to reduce his moral culpability and provide fair prospects of rehabilitation with appropriate treatment, support, and supervision.
The court had to decide whether the sentence was within the range reasonably open, considering the nature and gravity of the offence, the offender's culpability and degree of responsibility, and the circumstances of the case. The court reviewed the relevant principles in Bugmy v The Queen, R v Verdins, and Brown v The Queen, and compared the case to DPP v Todd. The court found that the sentence was within the range reasonably open, taking into account the mitigating factors and the overall circumstances of the case.
The court dismissed the appeal, upholding the sentence imposed by the lower court. The decision underscored the importance of considering the offender’s background and prospects for rehabilitation when determining the appropriate sentence. The court acknowledged the brutality and randomness of the crime but balanced this against the respondent's personal circumstances and potential for rehabilitation. The sentence of 36 years with a non-parole period of 30 years was deemed appropriate under the circumstances.