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DPP v Pan

DPP v Pan

Case [2022] VSCA 98 26 May 2022

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0167

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
PAGUIR PAN	Respondent

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JUDGES:	PRIEST, NIALL and EMERTON JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2022
DATE OF JUDGMENT:	26 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 98
JUDGMENT APPEALED FROM:	[2021] VSC 703 (Taylor J)

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CRIMINAL LAW – Sentence – Crown appeal – Murder – Sentence of 24 years’ imprisonment, non-parole period of 16 years – Whether total effective sentence and non-parole period each manifestly inadequate – Whether sentence matched objective gravity of offending – Young offender – Sentence within range – Appeal dismissed.

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Counsel
Appellant:		Mr C Boyce QC with Mr E Dober
Respondent:		Mr D Dann QC with Dr M Gumbleton
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Milides Lawyers

PRIEST JA
NIALL JA
EMERTON JA:

In the evening of 10 March 2019, when the respondent was 19 years old, he fatally shot his childhood friend, Winis Atem Apet, at close range with a shotgun. The respondent was arrested, charged with murder and, somewhat belatedly, pleaded guilty to the charge. Following a plea in mitigation, he was sentenced by a judge of the Trial Division to a term of imprisonment of 24 years. A non-parole period of 16 years was set by the judge. It is against that sentence that the Director of Public Prosecutions appeals,[1] on the single ground that the sentence, both as to its head term and its non-parole period, is manifestly inadequate.
[1]Criminal Procedure Act2009, s 287, the appeal is brought as of right.
In a careful set of reasons that explained how the judge arrived at the sentence she imposed, the judge set out a range of matters, many tending in different directions, that were relevant to sentence.
In summary, the judge assessed the gravity of the offending, describing it as extremely high.[2] She noted that the respondent had fired a shotgun at close range; he had attempted to disguise himself; and he had fled the scene, rendering no assistance to his childhood friend. The judge also took into account that the respondent was angry with the victim for assisting law enforcement and that this anger contributed to his decision to shoot Mr Apet. Further, the respondent was on bail for armed robbery at the time of the offending. The judge accepted that the respondent is an immature young man with limited capacity to manage conflict.[3] She stated that given the gravity of the offending, the principles of denunciation, protection of the community, just punishment, and deterrence, both general and specific, must be given appropriate weight.[4] The judge found the respondent’s prospects for rehabilitation to be guarded and that there was limited evidence of remorse.[5] Having taken all of these matters into account, the judge arrived at a head sentence of 24 years’ imprisonment.
[2]DPP v Pan [2021] VSC 703, [33] (‘Reasons’).
[3]Ibid [37].
[4]Ibid [39].
[5]Ibid [42]–[43].
It is important to…

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 Pan

Details

AGLC: Director of Public Prosecutions v Pan [2022] VSCA 98
Case: [2022] VSCA 98
Decision Date: 26 May 2022

CaseChat Overview and Summary

The case involved a prosecution by the Director of Public Prosecutions against Pan, who was convicted of murder. Pan was sentenced to 24 years’ imprisonment with a non-parole period of 16 years. The Crown appealed the sentence, arguing that it was manifestly inadequate given the gravity of the offence and the need for punishment and deterrence. The appeal was heard in the High Court of Australia.

The court had to determine whether the sentence imposed by the lower court was manifestly inadequate, both in terms of the total effective sentence and the non-parole period. The court also had to consider whether the sentence matched the objective gravity of the offending, taking into account the young age of the offender and whether the sentence was within the appropriate range. The primary focus was on assessing the appropriateness of the sentence in light of the severity of the crime and the need to achieve the aims of punishment, deterrence, and rehabilitation.

The High Court found that the sentence was not manifestly inadequate. It noted that the total effective sentence of 24 years and the non-parole period of 16 years were within the appropriate range for a murder conviction. The court emphasised the importance of considering the young age of the offender and the fact that the sentence reflected the objective gravity of the offending. It concluded that the sentence was appropriate and dismissed the appeal. The court’s decision highlighted the need for a balanced approach in sentencing, taking into account both the severity of the crime and the characteristics of the offender.

Orders