SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 80 of 2000
No. 81 of 2000
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| Appellant |
| v. |
| JOHN WHITESIDE and KRISTIAN PETER DIEBER |
| Respondents |
---
JUDGES: | WINNEKE, P., BROOKING and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 31 July and 1 August 2000 | |
DATE OF JUDGMENT: | 4 August 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 142 | |
---
Criminal Law – D.P.P. appeal against sentence – Manslaughter – Respondents chasing and bashing victims in belief (erroneous) that they had sexually assaulted young woman – Finding that respondents decided to “punish” victims – Consequences of “taking the law into one’s own hands” – “Vigilante conduct” – Judge misconstruing gravity of conduct and erroneously failing to have regard to principles of general deterrence – Partially suspended sentences “manifestly erroneous” – Principles to be applied on “Director’s appeals” discussed – s.567A Crimes Act 1958.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. G.R. Flatman Q.C. and Ms. S. Pullen | P.C. Wood, Solicitor for Public Prosecutions |
| For 1st Respondent For 2nd Respondent | Mr. P.A. Dunn Q.C. and Mr. I.D. Hill Q.C. | G.R. Bryant & Associates A. Isaacs |
WINNEKE, P.:
On 31 May of this year the respondents, John Whiteside and Kristian Dieber, pleaded guilty in the Supreme Court to the manslaughter of Keith Hibbins ("the deceased"). They were initially presented on a charge of murder but immediately before the plea, the Crown was given leave to file over a further presentment alleging charges of manslaughter based on unlawful and dangerous act. After hearing pleas in mitigation on behalf of the respondents, who are aged 28 and 24 years respectively, and admittedly of previous good character, the learned judge, on 23 June 2000, sentenced each to a period of three years' imprisonment and, in the case of both, suspended the whole of that term save the period during which they had been detained in custody prior to sentence. Thus Whiteside served 165 days in prison and Dieber 193 days. From the date of sentence, they have been at large.
Pursuant to s.567A of the Crimes Act, the Director of Public Prosecutions has appealed to this Court against the sentences imposed. In each case, the grounds of appeal relied upon by the Director, stated in summary form, are that the sentences are manifestly inadequate; that the learned judge erroneously gave excessive weight to factors of mitigation and too little to the gravity of the offence and the need for general deterrence; and that he erred in concluding that the suspension of all but five and six months respectively of the sentences passed, resulting in immediate release from custody, was adequate to meet the circumstances of those offences, to meet the requirement for general deterrence and to provide sufficient time in custody. Before considering these grounds, it will be necessary to briefly rehearse the facts which his Honour had found.
The assault which led to the death of the deceased occurred in Lansdowne Street, East…
Continue reading DPP v Whiteside and Dieber
Sign in free to access the full text
- AGLC
- DPP v Whiteside and Dieber [2000] VSCA 142
- Case
- [2000] VSCA 142
- Decision Date
CaseChat Overview and Summary
The court found that the trial judge had misconstrued the gravity of the respondents' actions and had not adequately considered the principles of general deterrence. The judge's characterisation of the respondents' conduct as an attempt to "punish" the victims, while technically accurate, failed to capture the full extent of the respondents' vigilante behaviour and the serious consequences of taking the law into one’s own hands. The sentences were considered to be manifestly erroneous because they did not sufficiently reflect the seriousness of the offence and the need to deter similar conduct in the future. The court emphasised that, in cases of Director's appeals, the principles of general deterrence and the need to maintain public confidence in the criminal justice system must be paramount.
Consequently, the court determined that the sentences imposed were manifestly erroneous and did not align with the principles guiding appeals by the Director of Public Prosecutions under section 567A of the Crimes Act 1958. The court ordered that the sentences be set aside and that the matter be remitted to the trial court for re-sentencing, ensuring that the new sentences appropriately reflected the gravity of the offence and the necessity for general deterrence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.