SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 750 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTOFER SIMPAS |
| No 751 of 2008 |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HR |
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JUDGES: | VINCENT and NETTLE JJA and VICKERY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 February 2009 | |
DATE OF JUDGMENT: | 16 March 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 40 | |
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Criminal Law – Sentencing – Crown appeal – Manslaughter – Intentionally causing serious injury – Affray – Whether sentences of four years and eight months and four years and nine months respectively with non-parole periods of three years manifestly inadequate – Youthful offenders – Whether youth and immaturity sufficient to warrant leniency – R v PDJ (2002) 7 VR 612 referred to – Appeal allowed – Respondents re-sentenced to sentences of six years and four months’ imprisonment with non-parole periods of four years and two months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC with Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent Simpas | Mr O P Holdenson QC | Lewenberg & Lewenberg |
| For the Respondent HR | Mr P G Priest QC with | Dowling McGregor, Solicitors |
VINCENT JA:
I agree that the appeal should be allowed for the reasons given by Vickery AJA and the respondents be re-sentenced in the manner proposed by his Honour.
NETTLE JA:
I have had the advantage of reading in draft the reasons for judgment of Vickery AJA and gratefully adopt his Honour’s statement of the facts.
As the sentencing judge observed in her sentencing remarks, the offences the subject of this appeal were the result of an episode of mob rule fuelled by alcohol and aggression. The respondent, Simpas, caused the death of the deceased by the unlawful and dangerous act of stabbing him in the neck with a broken bottle and intentionally caused the other victim, Spinks, serious injury by striking him in the chest with the same broken bottle. The respondent, HR, was equally responsible with Simpas for the death of the deceased, in that he instigated and encouraged the final affray, with the risk that one of the victims might be stabbed in the course of the melee.[1] These offences were, therefore, of a kind which this Court has said repeatedly should be visited with condign punishment.
[1]Johns v The Queen (1980) 143 CLR 108, 119 (Stephen J) and 131 (Mason, Murphy and Wilson JJ).
Despite all that, the judge considered that the primary focus of the sentencing process should be on rehabilitation. Consequently, based upon her assessment of each respondent’s personal circumstances, age, background, expressions of remorse and prospects of rehabilitation, her Honour sentenced each respondent on the count of manslaughter to only four years and six months’ imprisonment, Simpas on the count of intentionally causing serious injury to only six months’ imprisonment, of which three months’ were to be served cumulatively on the sentence imposed on the count of manslaughter, and HR on the count…
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- AGLC
- Director of Public Prosecutions v Simpas & HR [2009] VSCA 40
- Case
- [2009] VSCA 40
- Decision Date
CaseChat Overview and Summary
The court considered the seriousness of the offences, including the intentional nature of the assault and the significant harm caused to the victim. It also examined the relevance of the respondents’ youth and immaturity in the sentencing process, referencing the principles established in R v PDJ (2002) 7 VR 612. The court concluded that while youth and immaturity could be mitigating factors, they did not warrant such a lenient sentence given the gravity of the crime and the need for appropriate punishment and deterrence.
The appeal was allowed, and the sentences were deemed manifestly inadequate. The respondents were re-sentenced to six years and four months’ imprisonment each, with non-parole periods of four years and two months. This decision underscored the importance of balancing the mitigating factors of youth and immaturity with the need to appropriately reflect the gravity of the offence in the sentencing process.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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