JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 2 and 3 October 2019
DATE OF JUDGMENT:	29 October 2019
CASE MAY BE CITED AS:	DPP v Herrmann
MEDIUM NEUTRAL CITATION:	[2019] VSC 694

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CRIMINAL LAW – Sentence – Murder (1 charge) – Rape (1 charge) – Brutal attack on a stranger, late at night, on a public street – Savage and sustained assault on victim’s head with metal pipe, rendering immediately unconscious – Limited pre-planning – Attempt to destroy evidence by burning body – Bugmy considerations – Severe personality disorder – Applicability of Verdins principles – Early plea – Limited remorse – Young offender – No prior convictions – Prospects of rehabilitation – Standard sentencing offences – Total effective sentence of 36 years, with non-parole period of 30 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Bourke	Solicitor for Public Prosecutions
For Mr Herrmann	Mr T Marsh Ms A Wong	Victorian Aboriginal Legal Service

HER HONOUR:

Aiia Maasarwe was only 21, when you brutally attacked her in the early hours of the morning of Wednesday, 16 January 2019. Earlier that evening, she had gone to a ‘Let’s Talk in English’ social event in the city, and then to a comedy show in North Melbourne. One of her friends dropped her off at Bourke Street, to catch the tram home to her student accommodation. At 12:05am, she got off the No 86 tram on Plenty Road. She crossed the road, and began walking east along the footpath of Main Drive, Bundoora, next to the Polaris Shopping Centre.

You had spent much of that evening hanging about in or around the shopping centre. At 12:07am, you left the shopping centre, through the carpark, onto Main Drive. Shortly thereafter, you saw Ms Maasarwe walking towards you. The distance from the tram stop to where you attacked Ms Maasarwe was only about 100 metres.

As she was walking along, Ms Maasarwe phoned her sister, Ruba, who lived in Israel. It was something she often did, as it made her feel safer walking home alone at night. All Ms Maasarwe was able to say to Ruba before you attacked her was “I didn’t expect you to pick up.” Ruba then heard her sister screaming and swearing at you in Arabic, followed by the sound of someone or something being hit four times.

After you confronted Ms Maasarwe on the footpath, and struck her over the head with a metal pipe, she dropped her phone and fell to the ground, unconscious. She never regained consciousness.

Having incapacitated Ms Maasarwe, you dragged her body behind a low hedge, between the footpath and the carpark. You removed some of her clothing and raped her. You struck her at least nine more times to the head with the metal pipe, with severe force, causing multiple fractures to her skull…

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 Herrmann

Details

AGLC: DPP v Herrmann [2019] VSC 694
Case: [2019] VSC 694
Decision Date: 29 October 2019

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Herrmann involved a brutal attack on a stranger late at night on a public street. The assailant, Herrmann, used a metal pipe to inflict a savage and sustained assault on the victim's head, resulting in immediate unconsciousness. The attack was followed by an attempt to destroy evidence by burning the victim's body. The offender pleaded guilty to one count of murder and one count of rape. The court was required to determine an appropriate sentence that balanced the severity of the crime, the offender's background, and the principles of sentencing.

The legal issues before the court included assessing the appropriate weight to be given to the principles set out in Verdins, particularly in light of the brutal nature of the crime, and determining the appropriate sentence considering the offender's age, lack of prior convictions, prospects for rehabilitation, and the considerations outlined in Bugmy. The court also had to consider the principles of parity and proportionality in sentencing, as well as the offender's early guilty plea and limited remorse.

The court found that the attack was premeditated to some extent, despite limited planning, and that the use of a weapon and the attempt to destroy evidence demonstrated a high degree of culpability. The court acknowledged the offender's severe personality disorder but did not consider it a mitigating factor in sentencing. The court also noted the offender's early plea and prospects for rehabilitation but balanced these against the gravity of the crime. The total effective sentence was set at 36 years, with a non-parole period of 30 years, reflecting the severity of the offences and the need for public protection.

The court's final orders included the imposition of a total effective sentence of 36 years for the murder charge and an additional sentence for the rape charge to run concurrently, with a non-parole period of 30 years. The court considered the sentence to be proportionate to the crimes committed and to provide adequate deterrence and protection for the community.

Orders