CRIMINAL LAW – Sentence – Director’s appeal – Respondent’s murder conviction and sentence quashed while serving concurrent sentence for subsequent offence – Respondent re-sentenced after conviction for murder on re-trial – Whether declaration of pre-sentence detention incorrect – Effect of sections 18(1) and 18(2)(d) of the Sentencing Act 1991 – Effect of quashing of murder conviction and sentence – Whether incorrect pre-sentence detention declaration is a sentencing error – Whether sentencing judge erred in application of totality principle – Whether sentencing judge applied a two-tiered approach to sentencing – Whether sentence manifestly inadequate – Relevance of earlier sentence – Whether insufficient weight given to gravity of offence – Whether excessive weight given to mitigating factors of youth of offender, prospects of rehabilitation and remorse – Appeal dismissed.
PRACTICE AND PROCEDURE – Application for leave to amend notice of appeal – Allegation of specific factual error – Application refused.
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Appearances:
Counsel
Solicitors
For the Crown
Mr T Gyorffy
Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent
Mr R van de Wiel QC with Mr M Croucher
Dowling McGregor Thomas
MAXWELL P ASHLEY JA NEAVE JA:
On 8 December 2006 TY was found guilty by a Supreme Court jury of murdering Christopher Thomas Williams, after a second trial for that murder. He had previously been convicted of murder on 2 March 2005. That conviction was quashed by the Court of Appeal on 24 May 2006 and a retrial was ordered.
After hearing a plea in mitigation of sentence in February and again in October 2007, the judge in the second trial sentenced TY, on 28 November 2007, to a maximum term of 11 years, 46 weeks imprisonment, with a non-parole period of seven years 46 weeks. His Honour declared that TY had spent 1457 days in pre-sentence detention (‘PSD’).
The Director of Public Prosecutions now appeals against that sentence, on the ground that the sentence imposed on TY was manifestly inadequate. The Director also contends that the judge erred in law in making the PSD declaration of 1457 days, alternatively that the judge was led into sentencing error by the erroneous calculation of PSD.
Background to the offending
TY’s conviction for murder arose out of an incident involving himself and another group of young people at a tram shelter. The victim, Christopher Williams, was 17 years old and was celebrating the end of his VCE year with his friends. The respondent, then aged 14, made offensive remarks about a girl who was with Christopher’s group of friends. The learned judge summarised the tragic events which led to Christopher’s death, as follows:
As you have admitted, this kind of abusive remark…
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 TY (No 2) [2009] VSCA 226
Case
[2009] VSCA 226
Decision Date
CaseChat Overview and Summary
The matter under consideration involved the Director of Public Prosecutions (DPP) appealing against the sentence given to the respondent, TY, following his re-trial and conviction for murder. The respondent had initially been sentenced for a concurrent offence while his murder conviction and sentence were quashed. The central issues before the court were whether the declaration of the respondent's pre-sentence detention was incorrect and if the sentencing judge erred in the application of the totality principle and a two-tiered approach to sentencing. Additionally, the court had to determine whether the sentence was manifestly inadequate, whether the earlier sentence was relevant, and if sufficient weight was given to the gravity of the offence and mitigating factors such as the youth of the offender, prospects of rehabilitation, and remorse.
The court examined the effect of sections 18(1) and 18(2)(d) of the Sentencing Act 1991 in relation to the quashing of the murder conviction and sentence. It found that the incorrect pre-sentence detention declaration did not constitute a sentencing error as it did not impact the overall length of the sentence. The court also determined that the sentencing judge did not err in applying the totality principle and a two-tiered approach to sentencing. Furthermore, the court held that the sentence was not manifestly inadequate and that the earlier sentence was relevant in mitigating the sentence for the murder conviction. The court found that the sentencing judge had given sufficient weight to the gravity of the offence and the mitigating factors of the youth of the offender, prospects of rehabilitation, and remorse.
Consequently, the appeal was dismissed, and the original sentence was upheld. Additionally, the court refused the application for leave to amend the notice of appeal, finding that the allegation of a specific factual error did not warrant amendment. The court's decision reaffirms the importance of a balanced approach in sentencing, taking into account both the severity of the offence and the mitigating factors presented by the offender.