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DPP v Lovett

DPP v Lovett

Case [2008] VSCA 262 11 December 2008

Intellectual Impairment

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 99 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
ROBERT SHANE LOVETT

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JUDGES:	MAXWELL P, NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2008
DATE OF JUDGMENT:	11 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 262

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CRIMINAL LAW – Sentencing – Manslaughter by unpremeditated stabbing – Whether head sentence of 6 years’ with non-parole period of 3 years’ imprisonment manifestly inadequate – Youthful offender – Intellectual impairment – R v AB (No 2) [2008] VSCA 39, R v Winter [2006] VSCA 144 considered – R v Yaldiz [1998] 2 VR 376, Champion (1992) 64 A Crim R 244 applied – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC and Mr C B Boyce	Ronald Tait

MAXWELL P:

The respondent (‘Lovett’) pleaded guilty in the Supreme Court to one count of manslaughter by unlawful and dangerous act. He was sentenced to six years’ imprisonment, and a non-parole period of three years was fixed. The Director of Public Prosecutions now appeals against the sentence on the ground that the sentence was manifestly inadequate. For reasons which follow, I would dismiss the appeal.

The circumstances of the death[1]

[1]This section of the judgment is based on the Crown summary as presented on the plea.

The victim, Dwayne Sherri, was 27 when he died. Lovett was then 26. They had met through a mutual friend, with whom Lovett shared a house. Lovett and Sherri did not get along. According to the Crown summary, they were ‘different personalities and didn’t care for each other’.

On Wednesday, 23 May 2007, Sherri was at Lovett’s house for a social visit. Also present were Lovett, the mutual friend (Williams) and the third resident of the house (Winzer). During the day Lovett was ‘shouting’ alcoholic drinks for the group. Some time later, as Sherri was leaving the house, he told Lovett that he would return another day and ‘shout’ him a drink. In fact Sherri did not attend at the house the following day, and this annoyed Lovett. Sherri did not come to the house again until the following Friday.

On Friday, 25 May, two friends of Sherri’s came to his flat. Sherri had agreed to purchase cannabis for them, at their request. Some time after 8:00 pm, they travelled to Lovett’s house. Sherri intended to purchase cannabis from Lovett. On arrival, Sherri went to the house and Lovett answered the door. Lovett was not receptive to Sherri’s visit and they argued. At one stage Lovett was heard to say to Sherri, ‘What the fuck are you doing here? You were supposed to come around and shout me a drink and you never did. Get the fuck off my property before I slit your throat.’ After this argument, Sherri left with his two friends. Sherri and Lovett did not meet again…

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 Lovett

Details

AGLC: DPP v Lovett [2008] VSCA 262
Case: [2008] VSCA 262
Decision Date: 11 December 2008

CaseChat Overview and Summary

The matter before the Court of Appeal was an appeal by the Director of Public Prosecutions (DPP) against the sentence imposed on Lovett for the offence of manslaughter by unpremeditated stabbing. The Court of Appeal heard the appeal from the sentence imposed by the County Court of Victoria. The central issue before the Court was whether the sentence imposed on Lovett, which was a head sentence of 6 years’ imprisonment with a non-parole period of 3 years, was manifestly inadequate.

In considering this issue, the Court of Appeal examined the principles and guidelines for sentencing in cases of manslaughter by unpremeditated stabbing. The Court also considered the mitigating factors of Lovett’s age at the time of the offence, his intellectual impairment, and his prospects for rehabilitation. The Court of Appeal considered the relevant authorities, including R v AB (No 2) [2008] VSCA 39, R v Winter [2006] VSCA 144, R v Yaldiz [1998] 2 VR 376, and Champion (1992) 64 A Crim R 244. Ultimately, the Court of Appeal held that the sentence imposed on Lovett was not manifestly inadequate.

The Court of Appeal found that the sentence imposed on Lovett was appropriate in all the circumstances of the case. The Court noted that while the offence was serious, the sentence reflected the mitigating factors of Lovett’s age, intellectual impairment, and prospects for rehabilitation. The Court of Appeal also noted that the sentence imposed was consistent with sentences imposed in similar cases. Accordingly, the appeal was dismissed.

Orders