DPP v Power - [2016] VSC 498

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0053

THE DIRECTOR OF PUBLIC PROSECUTIONS

ADAM POWER

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9–12, 15–19, 22–26, 29 February, 1–4, 7 and 30 March 2016
DATE OF SENTENCE:	29 September 2016
CASE MAY BE CITED AS:	DPP v Power
MEDIUM NEUTRAL CITATION:	[2016] VSC 498 (First revision 6 March 2017 – to remove restricted status)

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CRIMINAL LAW – Sentence – Manslaughter – Aggravated burglary – Assault (x 5) – Joint criminal enterprise – “Run-through” of house, late at night, by 13 men armed with dangerous weapons and wearing Rebels Motorcycle Club clothing – Serious examples of manslaughter and aggravated burglary – Offender the primary organiser – No prior convictions – Youthful offender – Good prospects of rehabilitation – Need for general deterrence, denunciation and just punishment – Sentenced to total effective sentence of 12 years’ imprisonment with a non-parole period of 9 years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford QC Ms F Holmes	Solicitor for Public Prosecutions
For Mr Power	Mr J Saunders	Melasecca, Kelly & Zayler

HER HONOUR:

Adam Power, you have been found guilty by a jury of the manslaughter of Michael Sleiman, of aggravated burglary, and of five counts of assault.[1]
[1] The maximum penalties for those offences are: (a) Manslaughter - 20 years’ imprisonment; (b) Aggravated burglary – 25 years’ imprisonment; and (c) Assault – 5 years’ imprisonment.

The offences all relate to an incident that took place on the night of Sunday, 26 January 2014, at 99 Billingham Road in Deer Park. The incident was the last of a number of confrontations which had taken place between two groups of people, beginning two days earlier.

One of the groups was connected to members of the Borg family, including Ben, Matthew and Jessie Borg, all of whom are your younger cousins.

The members of the other group were connected to two brothers, Phillip and Daniel Labanie. The deceased man, Michael Sleiman, was part of the Labanie group, and lived at the Billingham Road property.

Ben Borg was told by an ex-girlfriend that Phillip Labanie had sexually assaulted her. That allegation set in motion the chain of events that led to these offences.

On the evening of Friday, 24 January 2014, Ben and Matthew Borg and some of their associates drove to 99 Billingham Road, where they understood that Phillip Labanie was staying. The Borgs got out of their cars and spoke to people at the address, including Michael Sleiman. Ben Borg was yelling out that he wanted to speak to Phillip Labanie about raping his ex-girlfriend. Some of the Labanie group armed themselves with weapons, but did not use them. One of the Borgs went to the boot of a car and retrieved a spear gun, which he pointed at the Labanie group. Once the Borgs were satisfied that Phillip Labanie was not there, they did some “burn outs”and sped off.

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 Power

Details

AGLC: DPP v Power [2016] VSC 498
Case: [2016] VSC 498
Decision Date: 29 September 2016

CaseChat Overview and Summary

In the case of Director of Public Prosecutions v Power, the dispute involved the sentencing of a primary organiser of a serious criminal enterprise. Thirteen men, armed with dangerous weapons and dressed in Rebels Motorcycle Club clothing, conducted an aggressive, late-night raid on a house, resulting in multiple assaults and a manslaughter. The offender, with no prior convictions, was a youthful participant with good prospects of rehabilitation. The court was tasked with determining the appropriate sentence, balancing the need for general deterrence, denunciation, and just punishment.

The primary legal issues the court had to address were the severity of the crimes committed, the role of the offender as the primary organiser, and the potential for rehabilitation. The court had to consider the gravity of the offences, which included multiple assaults and manslaughter, as well as the offender's role in orchestrating the crime. Additionally, the court needed to weigh the offender's prospects for rehabilitation against the need for punishment and deterrence. These factors played a critical role in determining the appropriate sentence.

The court concluded that the crimes were of a serious nature, necessitating a substantial sentence. However, it also recognised the offender's potential for rehabilitation and lack of prior convictions. After considering all the mitigating and aggravating factors, the court imposed a total effective sentence of 12 years’ imprisonment with a non-parole period of 9 years. This sentence was deemed appropriate to achieve the objectives of general deterrence, denunciation, and just punishment, while also taking into account the offender's prospects for rehabilitation.

The final orders of the court mandated that the offender serve a total effective sentence of 12 years, with a non-parole period of 9 years. This sentence reflects the court's balanced approach, considering both the severity of the crimes and the offender's potential for rehabilitation. The court's decision aimed to achieve the overarching goals of the criminal justice system in this case.

Orders