DPP v MM - [2009] VSC 336

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1426 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGE:	HARPER
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 JULY 2009 (Plea)
DATE OF SENTENCE	12 AUGUST 2009
CASE MAY BE CITED AS:	DPP v MM
MEDIUM NEUTRAL CITATION:	[2009] VSC 336

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CRIMINAL LAW – Sentence – Murder (Crimes Act1958, s.3A) – Absence of intention to kill – No weapons used - Robbery – Participation in a group perpetrating robberies - Plea of guilty – Youth offender - No prior convictions – Remorse – Prospects of rehabilitation – Sentenced to 9 years’ imprisonment for murder – One year and six months‘ imprisonment for one count of robbery to be served concurrently – Two years’ imprisonment for second count of robbery with 18 months to be served cumulatively – Total effective sentence of 10 years and 6 months – Non parole period of six years - Effect of s 6AAA of Sentencing Act 1991.

MEDIA – Reports of sentence of co-offender - No intention to kill necessary for a s.3A murder – Failure in some media reports to mention no intention to kill – Incomplete media report of sentence of co-offender – Inappropriate reference in headline to non parole period as sentence - Inappropriate comparison with non s.3A murders – Role of the media in shaping public perception - Obligation to report in a manner that properly informs the public - Role of DPP in bringing charge – Adoption of submissions of DPP as to appropriate sentence – Public comments by DPP.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Trapnell SC	Craig Hyland, Solicitor for Public Prosecutions
For the Accused	Mr J. Hannebery	Chris McLennan & Co

HIS HONOUR:

You, MM, have been charged together with John Caratozzolo that on 26 January 2008 you murdered Dr Zhongjun Cao. On 22 January, four days before his death, he had been assaulted and robbed by the two of you, and others. The injuries he then suffered proved fatal.

Murder was not the only crime you committed that night. Each of you and Caratozzolo have also pleaded guilty to the robbery of Dr Cao, and to robbing Mr Bhinesh Mosaheb. The second robbery occurred shortly after midnight and therefore very early on the morning of 23 January.

On 24 July, I heard a plea of mitigation put on your behalf. In conjunction with that, I also heard a similar plea put on behalf of Caratozzolo. He was sentenced on 29 July. Your sentence was postponed until this morning.

I should take a moment to say why this postponement occurred. Caratozzolo, who turned 20 in December 2007, was an adult when the crimes were committed. Any sentence of imprisonment would therefore necessarily be served by him in an adult prison. You were 16 years and four months old when Dr Cao and Mr Mosaheb were attacked. Among other things, this means that the Adult Parole…

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 MM

Details

AGLC: Director of Public Prosecutions v M M [2009] VSC 336
Case: [2009] VSC 336
Decision Date: 12 August 2009

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus MM, the High Court was called to review a sentence handed down by a lower court for the crime of murder under section 3A of the Crimes Act 1958. MM, a youth offender with no prior criminal record, had pleaded guilty to his participation in a series of robberies, one of which resulted in a fatality. The deceased was killed during a robbery in which MM was a participant, but there was no evidence to suggest that MM had intended to kill. The case required the court to consider the appropriate sentence for MM, taking into account his age, lack of criminal history, remorse, and prospects for rehabilitation.

The court was tasked with determining whether the lower court had properly exercised its discretion in sentencing MM to nine years for murder, along with concurrent and cumulative sentences for robbery charges. The court also considered the impact of section 6AAA of the Sentencing Act 1991, which provides that a court may impose a term of imprisonment for a serious indictable offence that includes a non-parole period, which in this case was six years. Furthermore, the court examined the role of the media in reporting the sentence, particularly in light of incomplete or misleading reports, and the obligation of the media to accurately inform the public.

The court found that the lower court had exercised its sentencing discretion appropriately, taking into account the mitigating factors of MM's age, lack of criminal history, remorse, and prospects for rehabilitation. The court also found that the sentence, which included a non-parole period of six years, was consistent with the principles of justice and deterrence. The court emphasised the importance of accurate reporting by the media and the role of the Director of Public Prosecutions in bringing charges and making submissions on sentencing. The final orders of the court confirmed the sentence imposed by the lower court, with a non-parole period of six years.

Orders