CRIMINAL LAW – Appeal – Sentence – Statutory murder – Crown appeal – Offender stabbed victim during armed robbery – Offender on parole – Sentence of 20 years’ imprisonment – Whether manifestly inadequate – Whether intent relevant – Whether drug intoxication aggravating feature – Prevailing view that statutory murder less serious than common law murder – Cumulation – Whether armed robbery sentence should have been cumulated – Relevance of position adopted by Crown on plea – Current sentencing practices – Sentence reasonably open – Crown appeal dismissed – Crimes Act 1958 s 3A.
CRIMINAL LAW – Appeal – Sentence – Statutory murder, armed robbery (3) – Total effective sentence 27 years’ imprisonment, non-parole period 23 years – Totality – Whether excessive cumulation of sentences on unrelated armed robberies – Offences committed on parole – Time served prior to release on parole – Whether relevant – No breach of totality principle – Leave to appeal refused – DPP v Oksuz [2015] VSCA 316 applied.
CRIMINAL LAW – Sentencing – Sentencing principles – Assessment of offence gravity – Assessment of offender culpability – Statutory murder – Act of violence causing death – Act committed ‘in the course or furtherance’ of foundational offence – Prevailing view that statutory murder less serious than common law murder, and offender culpability lower – Established practice of imposing lower sentences – Whether killing must be proved to have been unintentional – Whether intent relevant – Prevailing view erroneous – Current sentencing practice inadequate – Intent relevant to seriousness and culpability – Whether sentence on foundational offence should be cumulated – Current practice not to cumulate – Practice should change – Crimes Act1958 s 3A.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr G J C Silbert QC with Ms R J S Sharp
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr M O’Connell SC with Ms B Franjic
Greg Thomas Barristers and Solicitors
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MAXWELL ACJ REDLICH JA WHELAN JA:
Gavin Perry (‘Perry’) stabbed and killed Dermott O’Toole in the course of carrying out an armed robbery of Mr O’Toole’s jewellery shop in Hastings. As the CCTV footage from the shop shows, Perry stabbed his victim twice in the chest, with a large carving knife, as he lay on his back on the floor.
Perry was originally charged with common law murder but the Director of Public Prosecutions subsequently agreed to accept a plea to what is known as ‘statutory murder’, under s 3A of the Crimes Act 1958. As will appear, this provision is the statutory embodiment of the common law rule known as the ‘felony…
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.
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Details
AGLC
DPP v Perry [2016] VSCA 152
Case
[2016] VSCA 152
Decision Date
CaseChat Overview and Summary
The case of DPP v Perry involved an appeal by the Director of Public Prosecutions against the sentence imposed on Perry for statutory murder, committed during an armed robbery while he was on parole. Perry had stabbed the victim, Mr. O’Toole, twice in the upper chest region, resulting in his death. The Court of Appeal was required to determine whether the sentence of 20 years’ imprisonment, with a non-parole period of 15 years, was manifestly inadequate and whether certain factors, such as Perry’s intent and drug intoxication, should have been considered as aggravating circumstances. Additionally, the court had to decide if the sentence for the armed robbery should have been cumulated with the murder sentence.
The court found that the sentencing judge was not precluded from considering Perry’s intent during the stabbing, even though intent was not an element of statutory murder under the Crimes Act 1958. The court held that if the evidence supported an inference of murderous intent, the sentencing judge could treat it as an aggravating factor. The court further reasoned that the prevailing view that statutory murder was less serious than common law murder was erroneous, and that intent was relevant to both the seriousness of the offence and the offender’s culpability. The court also noted that the current practice of not cumulating sentences for statutory murder and armed robbery should be reconsidered.
The Court of Appeal concluded that the sentence was reasonably open to the sentencing judge and dismissed the Crown’s appeal. The court held that the totality of the sentence, including the non-parole period, did not breach the totality principle, and thus, the sentence was not excessive. The court also noted that the time served prior to release on parole was not relevant to the cumulation of sentences.
The final orders of the court were that the appeal by the Director of Public Prosecutions be dismissed, and leave to appeal be refused. The sentence of 20 years’ imprisonment, with a non-parole period of 15 years, was upheld. The court applied the decision in DPP v Oksuz [2015] VSCA 316, which held that the totality principle was not breached in similar circumstances.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
R v Kelly appears to be the only Victorian case where a finding might have been made that the act causing death was accompanied by an intention to cause — at least — really serious injury. The offending in the present case was more serious, however. The CCTV evidence showed very clearly the forceful manner in which Perry stabbed Mr O’Toole, twice, in the upper chest region. On the view of the law set out in these reasons, the question of Perry’s intent was a matter which could, and should, have been investigated, as going to the gravity of the offence and Perry’s moral culpability. As explained below, however, the sentencing judge proceeded on the understandable assumption that she was precluded from raising that issue. When is a sentencing judge entitled to depart from agreed facts? We turn to consider what course would be open to a sentencing judge in a case of statutory murder, if the agreed position on the plea was that there was an absence of murderous intent but the evidence before the judge invited the inference that the violent act had indeed been accompanied by such intent. First, we should make some general observations about the approach required in sentencing for any offence where there is an issue as to intent. By a plea of guilty the offender is taken to admit each of the elements of the offence to which they pleaded. Conventionally, the Crown opening constitutes an agreed factual basis upon which a judge passes sentence.[72] [72] DPP v CPD (2009) 22 VR 533, 543 [41]. If intent is not an element of the offence but the prosecution wishes intent to be taken into account as an aggravating circumstance, it must bring that to the attention of the judge and, if necessary, call evidence in support of it.[73] A finding that an offender possessed a particular intent, being a finding adverse to the offender, could only be made if established beyond reasonable doubt.[74] [73]R v Olbrich (1999) 199 CLR 270, 281 [25]; R v Storey [1998] 1 VR 359, 367 (‘Storey’).[74]Storey [1998] 1 VR 359, 369. Conversely, a sentencing judge could not make a mitigatory finding that the act was unintentional — if that was a matter in dispute — solely because intention was not an element of the offence or because the prosecution could not prove intention. The High Court in R v Olbrich rejected a contention that Returning to statutory murder, even if parties are agreed as to how the presence or absence of intent should be approached, if the admitted facts would support an inference of murderous intent the sentencing judge is not precluded from drawing that inference and treating it as an aggravating factor. Nothing in the language of s 3A expressly or impliedly prohibits the sentencing judge from considering whether the accused possessed a murderous intent. As we have said, s 3A is a deeming provision which creates liability to conviction for murder without requiring proof of intent. The absence of that requirement does not render intent — if present — irrelevant, or evidence of intent inadmissible.