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DPP (Vic) v Simpas

DPP (Vic) v Simpas

Case [2009] VSCA 40 16 March 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 750 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
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 Mr M J Croucher	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…

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 (Vic) v Simpas

Details

AGLC: Director of Public Prosecutions v Simpas & HR [2009] VSCA 40
Case: [2009] VSCA 40
Decision Date: 16 March 2009

CaseChat Overview and Summary

The respondents, Simpas and another, were convicted of manslaughter and affray in relation to an incident where Simpas threw a beer bottle at the victim, causing serious injuries that led to the victim’s death. The Crown appealed the sentences imposed on the respondents, arguing that the sentences of four years and eight months and four years and nine months respectively, with non-parole periods of three years, were manifestly inadequate. The appeal raised the issue of whether the sentences took sufficient account of the gravity of the offences and the impact of the respondents’ youthful age and immaturity.

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