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DPP v White

DPP v White

Case [2020] VSCA 37 4 March 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0144

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JOHN SPENCER WHITE	Respondent

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JUDGES:	MAXWELL P, BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2020
DATE OF JUDGMENT:	4 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 37
JUDGMENT APPEALED FROM:	[2019] VSC 400 (Elliott J)

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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Manslaughter – Unlawful and dangerous act – Victim shot twice in chest – Offender concealed body – Not discovered for 17 years – Plea of guilty – Respondent sentenced to 6 years and 6 months’ imprisonment with non-parole period of 3 years and 6 months – Whether manifestly inadequate – Post‑offence conduct significant aggravating feature – No basis for exercise of residual discretion – Appeal allowed – Respondent resentenced to 9 years’ imprisonment with non‑parole period of 6 years.

CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Manifest inadequacy – Whether test for manifest inadequacy substantively reformulated – HT v The Queen (2019) 93 ALJR 1307 considered – DPP v Karazisis (2010) 31 VR 634 applied – Test for manifest inadequacy unchanged.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D I Piekusis QC with Mr B W Johnston	Ms A Hogan, Acting Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Ms K Ballard	Macedone Legal

MAXWELL P

BEACH JA
WEINBERG JA:

On 11 June 2001, the respondent (‘JW’) shot and killed John Christianos. Mr Christianos was an employee of JW. He was shot twice in the upper body and, almost certainly, died instantly.

Thereafter, JW took steps to conceal Mr Christianos’ body. He was so successful in that regard that Mr Christianos’ body was not discovered until some 17 years later. JW was initially charged with murder, but offered at an early stage to plead guilty to the lesser offence of manslaughter. The Crown accepted that offer.

Ultimately, he was sentenced on 20 June 2019 as follows:

Charge

Offence

Maximum

Sentence

1
Manslaughter —

[Common law] Crimes Act 1958 s 5
20 years 6 years and 6 months

Non-parole period: 3 years and 6 months’

Pre-sentence detention: 308 days

Section 6AAA statement 8 years’ imprisonment with a non-parole period of 6 years

Charge	Offence	Maximum	Sentence
1	Manslaughter — [Common law] Crimes Act 1958 s 5	20 years	6 years and 6 months
Non-parole period:	3 years and 6 months’
Pre-sentence detention:	308 days
Section 6AAA statement	8 years’ imprisonment with a non-parole period of 6 years

The Director of Public Prosecutions has appealed against that sentence on the ground of manifest inadequacy. For reasons that follow, we would allow the appeal, set aside the sentence imposed below and resentence JW to a term of 9 years’ imprisonment. We would fix a non-parole period of 6 years.

The circumstances surrounding the offending

On 11 June 2001, Mr Christianos was shot and killed at JW’s business premises, in Malvern East, known as ‘Memorabilia Headquarters’. JW fired two shots from a semi-automatic pistol into the chest and armpit of Mr Christianos. That weapon had been acquired some time earlier, and the Crown did not dispute JW’s assertion that he had obtained it for self‑protection and, more specifically, to defend himself…

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 White

Details

AGLC: DPP v White [2020] VSCA 37
Case: [2020] VSCA 37
Decision Date: 4 March 2020

CaseChat Overview and Summary

The matter of the Director of Public Prosecutions (DPP) v White was heard by the High Court of Australia. The respondent, White, had pleaded guilty to manslaughter following an unlawful and dangerous act that resulted in the death of the victim, who was shot twice in the chest. After concealing the body, White went free for 17 years before being apprehended. The respondent was sentenced to a term of 6 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months. The Director of Public Prosecutions appealed the sentence as manifestly inadequate.

The legal issues before the court were whether the sentence was manifestly inadequate and whether the test for manifest inadequacy had been reformulated by recent case law. Specifically, the court had to consider the significance of the post-offence conduct and whether it provided a basis for the exercise of the court's residual discretion. The court also had to assess the impact of the decision in HT v The Queen (2019) 93 ALJR 1307 on the test for manifest inadequacy.

The court held that the sentence was manifestly inadequate. It noted that the post-offence conduct was a significant aggravating feature and provided no basis for the exercise of residual discretion. The court applied the test for manifest inadequacy as outlined in DPP v Karazisis (2010) 31 VR 634, and found that the sentence did not accord with the community’s standards of punishment. The court also confirmed that the test for manifest inadequacy remained unchanged following the decision in HT v The Queen. The appeal was allowed, and White was resentenced to 9 years’ imprisonment with a non-parole period of 6 years.

The court ordered that the respondent be resentenced to 9 years' imprisonment with a non-parole period of 6 years. This decision reaffirmed the unchanged nature of the test for manifest inadequacy and highlighted the importance of post-offence conduct in determining the appropriate sentence.

Orders