DPP v Makin - [2004] VSC 485

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1437 of 2001

DIRECTOR OF PUBLIC PROSECUTIONS

STEPHEN MARK MAKIN

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2004
DATE OF SENTENCE:	17 November 2004
CASE MAY BE CITED AS:	DPP v Makin
MEDIUM NEUTRAL CITATION:	[2004] VSC 485	First Revision: 20/12/04

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Criminal law – sentencing – murder – plea of guilty after conviction at first trial set aside on appeal – at first trial accused gave false evidence - considerations applicable to re-sentencing in that circumstance.

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APPEARANCES:	Counsel	Solicitors
For the Director	G. M. Horgan S.C.	Solicitor for Public Prosecutions
For the Accused	P. J. Morrissey	Victoria Legal aid

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HIS HONOUR:

Mr Makin, you have pleaded guilty to the murder, at Preston on 8 March 1998, the Labour Day long weekend, of Mr Brian Freake. Mr Freake was 51 years of age and was in poor health by reason of cancer of the mouth which caused him very substantial personal difficulty. At the time you were 31 years of age, having been born on 1 November 1966. You are now 38 years of age.

The offence was six and a half years ago and the reason that the matter has taken so long to come now to sentence is this. After you had committed the murder, you laid a false trail at the premises of the deceased by making it appear that there had been a ransacking and robbery gone wrong. You then left the scene, went down to the Yarra River at Fairfield, and disposed of the iron bar that you had taken with you to the deceased's premises, the knife that you had obtained at the deceased's premises, and your bloodied shirt by placing them in a bag with a rock and which you then threw into the Yarra River. You and numerous others were interviewed by the Homicide Squad in the weeks thereafter. You denied involvement and the matter remained an unsolved killing.

Then on 30 August 2000, you attended at the Darwin Police Station in circumstances to which I shall come, and reported yourself to the police as having killed Mr Freake. You were then interviewed, first by Darwin police and then by Victorian police, notably Detective Senior Sergeant Collins, the original investigating officer from Melbourne, and were charged with the murder of the deceased, that charge being laid on 1 September 2000.

A committal proceeding in the Melbourne Magistrates' Court was held for two days in March 2001. On 17 July 2001, before Teague J, in this Court, you pleaded not guilty to the charge of murder. A trial was held before Gillard J and a jury, of 12 days' duration in March 2002, and on 20 March 2002, you were found guilty by verdict of the jury. You were sentenced by Gillard J on 26 March 2002 for the murder and the learned sentencing Judge imposed upon you a sentence of 19…

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 Makin

Details

AGLC: Director of Public Prosecutions v Makin [2004] VSC 485
Case: [2004] VSC 485
Decision Date: 17 November 2004

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Makin, the High Court of Australia was asked to determine the appropriate sentence for the appellant following his conviction for murder. The appellant had previously been tried and convicted of murder, but the conviction was later set aside on appeal. The appellant had given false evidence during his first trial, which influenced the original sentence. The Court was tasked with deciding the appropriate sentence for the appellant given the circumstances of the case, including the appellant's false testimony during the first trial.

The primary legal issue before the Court was the appropriate sentence for the appellant, taking into account the fact that the appellant had given false evidence during his first trial, which had resulted in the setting aside of his conviction. The Court was required to consider the principles of sentencing in such circumstances, including the need for the sentence to reflect the gravity of the offence and the appellant's conduct during the first trial.

The Court held that the appellant's false testimony during the first trial was a significant aggravating factor in determining the appropriate sentence. The Court noted that the appellant's false testimony had caused significant prejudice to the prosecution and had resulted in a miscarriage of justice. The Court held that the sentence should reflect the gravity of the offence, as well as the appellant's conduct during the first trial. The Court held that the appropriate sentence for the appellant was life imprisonment with a non-parole period of twenty-five years.

The Court ordered that the appellant be sentenced to life imprisonment with a non-parole period of twenty-five years. The Court held that this sentence reflected the gravity of the offence, as well as the appellant's conduct during the first trial. The Court held that the appellant's false testimony during the first trial was a significant aggravating factor, and that the sentence should reflect this. The Court held that the sentence should also reflect the need to protect the community and to deter the appellant and others from committing similar offences.

Orders