DPP v LW - [2009] VSC 227

IN THE SUPREME COURT OF VICTORIA

NOT RESTRICTED

AT MELBOURNE

CRIMINAL DIVISION

No. 1683 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16-20, 23-24, 26 February (plea), 21 May 2009 (further plea)
DATE OF SENTENCE:	15 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSC 227

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CRIMINAL LAW – Sentencing – Incitement – Incitement to murder – Proposed victim had sexually abused offender’s young daughter – Agreement made with undercover police officer – Prior good character – Need for specific deterrence low – Need for denunciation and general deterrence – Sentenced to 6 years imprisonment with a non-parole period of 3 years – Crimes Act 1958 s 321G

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G Cannon	Solicitor for Public Prosecutions
For the Accused	Mr T Walsh	Melinda Walker Criminal Law Solicitors

HER HONOUR:

You have been found guilty by a jury of one count of incitement to murder. On 2 and 3 October 2007, you incited somebody known to you as “Dale”, who was in fact an undercover police officer, to murder your stepfather. The offence occurred in the following circumstances and against the following background.

By September 2007, you had found out that your stepfather had sexually assaulted your 12 year-old daughter. Over the following weeks you expressed the view, on a number of occasions, that your stepfather had to die for what he had done to your daughter. The person to whom you primarily expressed this desire was Con, the father of your two young sons. At first, he did not think that you meant it, and thought you were just “mouthing off”.

According to Con, you initially expressed a desire to stab your stepfather in his sleep. Con says that, some time later, you started mentioning shooting your stepfather instead, and asked him to help you get a gun.

On 17 September 2007 Con approached Jim Tzefer, a police officer who was a longstanding family friend. Con told Jim that you had asked for his help to get a gun so you could kill your stepfather. Mr Tzefer told Con he could not help and advised Con to immediately get in contact with the South Melbourne CIU. Con did not contact the CIU for another 8 days.

Con says that you eventually asked him whether he knew a hitman, and he passed this request on to the police. As a result of discussions between Con and Detective Senior Constable Chris Sheen of the South Melbourne CIU, on 2 October 2007 Con introduced you to “Dale”, an undercover policeman posing as a hitman.

After an initial discussion at a hotel in Fitzroy, you accompanied Dale in a car to show him where your stepfather was then living with your mother, before going back to your house with him. You provided Dale with a description of the proposed victim, details of where he worked, and a sketch floor plan of the house, showing in which bedroom he slept.…

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 LW

Details

AGLC: Director of Public Prosecutions v L W [2009] VSC 227
Case: [2009] VSC 227
Decision Date: 15 June 2009

CaseChat Overview and Summary

The appellant, LW, was convicted of incitement to murder under the Crimes Act 1958. The victim of the incitement was a police officer who had sexually abused LW's young daughter. LW had entered into an agreement with an undercover police officer to kill the victim. LW had no prior criminal history and therefore had a good character. The court was required to determine the appropriate sentence, considering the factors relevant to incitement offences. The primary considerations were the need for specific deterrence, denunciation, and general deterrence.

The court acknowledged that LW had acted under significant emotional duress due to the abuse of his daughter. However, the court found that the need for specific deterrence was low, given LW's prior good character and the circumstances of the crime. The court placed significant weight on the need for denunciation and general deterrence, as incitement to murder is a serious offence that undermines the rule of law. The court also considered the potential impact on LW's family, but found that this did not outweigh the need for a strong message against such incitement. The court sentenced LW to 6 years imprisonment with a non-parole period of 3 years, balancing the need for punishment with the circumstances of the crime.

The court's decision highlights the importance of considering both the individual circumstances of the offender and the broader societal implications when sentencing for incitement offences. The court found that while LW's actions were influenced by the abuse of his daughter, the need for denunciation and general deterrence required a significant sentence. The outcome reflects the court's commitment to upholding the rule of law and deterring similar conduct in the future. The final orders of the court were that LW be sentenced to 6 years imprisonment with a non-parole period of 3 years.

Orders