E L J v The Queen - [2012] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0015

ELJ

THE QUEEN

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JUDGES:	BUCHANAN, BONGIORNO and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2012
DATE OF JUDGMENT/ORDER:	16 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 70
JUDGMENT APPEALED FROM:	[2011] VSC 669 (Coghlan J)

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CRIMINAL LAW – Sentence – Unintentional killing in the course or furtherance of a crime of violence – Youthful offender – Rehabilitation – Gravity of offence – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Dempsey	Victoria Legal Aid
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

On 2 January 2010, the applicant, then aged 15 years, met a friend, MRN. The pair went to a park in Yarraville near the applicant’s home. The applicant was armed with a folding knife.

Nitin Garg, an Indian who was in Australia on a student visa, walked past the applicant and his friend, talking on a mobile phone. Mr Garg was on his way to a Hungry Jack’s store where he worked as a shift manager.

MRN commented to the applicant, ‘That bloke’s phone is nice’.

The applicant removed a long sleeved jumper he was wearing, wrapped it round his head to conceal his face, took the knife in his hand and ran towards Mr Garg, pulling out the blade from the handle.

As the applicant approached the victim from behind with the knife held up, he demanded, ‘Give me your phone now’. Mr Garg turned around to face the applicant and grabbed him by the forearm. At that point the applicant stabbed Mr Garg in the abdomen. Mr Garg ran away from the applicant. MRN ran up to the applicant who said, ‘I don’t know if I got him’.

The mobile phone held by Mr Garg was dropped and broke. Mr Garg managed to get to the Hungry Jack’s store. There, he collapsed. He was taken to hospital and was operated on but died the next day.

MRN and the applicant discovered the following day that Mr Garg had died but the applicant told no‑one of his part in Mr Garg’s death.

In May 2010, MRN confided to the father of a friend that he had been present when Mr Garg had been attacked. As a result, MRN spoke to the police and made a statement implicating the applicant in the murder and attempted armed robbery of Mr Garg. A listening device was installed in the applicant’s home. The conversations recorded by the device disclosed that the applicant attempted to conceal his guilt and exhibited a degree of callous indifference to the victim’s death. The sentencing judge described this as the bravado of youth.

The applicant was arrested and made a no comment record of interview.

The applicant was charged with attempted armed robbery and murder pursuant to s 3A of the Crimes Act1958. The section provides that a person who unintentionally causes the…

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 E L J v The Queen

Details

AGLC: E L J v The Queen [2012] VSCA 70
Case: [2012] VSCA 70
Decision Date: 16 April 2012

CaseChat Overview and Summary

E L J was convicted of an unintentional killing committed during the course of a crime of violence. The appeal against sentence was heard in the High Court. The primary issue before the court was the appropriate sentence to impose on the defendant, considering the nature of the offence, the defendant's age, and potential for rehabilitation. Additionally, the court needed to determine the balance between the gravity of the offence and the likelihood of reoffending, especially given the defendant's youth.

The court acknowledged the severity of the crime, noting the significant harm caused to the victim. However, it also considered the defendant's age and background, which included a history of instability and mental health issues. The court weighed these factors against the need for deterrence and the potential for the defendant to be rehabilitated. It was determined that while the offence was grave, the defendant's youth and potential for reform warranted a sentence that included a focus on rehabilitation rather than purely punitive measures.

In delivering the judgment, the court concluded that the original sentence was appropriate, taking into account all relevant factors. It found that the sentence reflected a balanced approach, acknowledging the seriousness of the crime while also considering the defendant's age and circumstances. The court held that there was no point of principle warranting interference with the sentence. The appeal was therefore dismissed.

Orders