Legal Research
Cases
Maybus v The Queen

Maybus v The Queen

Case [2017] VSCA 125 30 May 2017

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0083

LUKE PAUL MAYBUS

THE QUEEN

---

JUDGES:	OSBORN, KAYE JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2017
DATE OF JUDGMENT:	30 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 125
JUDGMENT APPEALED FROM:	[2016] VSC 116 (Beale J)

---

CRIMINAL LAW – Sentence – Application for leave to appeal – Charges of manslaughter, theft and arson – 9 years’ imprisonment on principal offence – Total effective sentence of 10 years’ imprisonment with non-parole period of 8 years – Whether plea of guilty to manslaughter was a ‘late plea’ – Whether plea was entered at ‘first reasonable opportunity’ – Plea of guilty received mid-trial following significant damage to credit of key Crown witness – Cameron v The Queen (2002) 209 CLR 339 applied – ss 5(2)(e), 6AAA Sentencing Act 1991 – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gurvich QC with Mr P Smallwood	Stephen Andrianakis & Associates
For the Respondent	Mr D Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

OSBORN JA
KAYE JA:

On 15 January 2015, the applicant was arrested and charged with one count of the murder, one count of theft and one count of arson. Two co-accused were also charged with the same murder. After a contested committal proceeding, at the conclusion of which the applicant pleaded not guilty to each of the charges, the trial for murder, along with the trial of his two co-accused, was listed to commence in early February 2016. On 22 February 2016, the applicant was arraigned in front of a jury panel and pleaded not guilty to murder, but guilty to the charges of theft and arson. In the second week of the trial, during cross-examination of a principal prosecution witness, the prosecution and the applicant agreed to settle the charges against him. Accordingly, on 2 March, the applicant was re-arraigned and pleaded guilty to manslaughter.

Following a plea, the applicant was sentenced by the trial judge as follows:[1]
[1]R v Walker & Maybus [2016] VSC 116 (‘Reasons’).

Charge No	Offence		Maximum	Sentence	Cumulation
1.	Manslaughter [contrary to common law]		20 years’ imprisonment	9 years’ imprisonment	Base Sentence
2.	Theft [Crimes Act 1958 (Vic) s 74]		10 years’ imprisonment	6 months’ imprisonment	6 months concurrent with Charge 3; cumulative with Charge 1
3.	Arson [Crimes Act 1958 (Vic) s 197]		15 years’ imprisonment	12 months’ imprisonment	12 months concurrent with Charge 2; cumulative with Charge 1
Total Effective Sentence:				10 years’ imprisonment
Non-Parole Period:				8 years
*Pre-Sentence detention declaration pursuant to section 18(1) of the Sentencing Act 1991:*				428 days
S6AAA Statement:		12 years’ imprisonment with a non-parole period of 9 years
Other relevant orders:		Disposal orders under section 77(1) Confiscation Act 1997

The applicant now seeks leave to appeal on one ground, namely:

The learned sentencing judge erred in failing to give effect to s 5(2)(e) of the Sentencing Act

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 Maybus v The Queen

Details

AGLC: Maybus v The Queen [2017] VSCA 125
Case: [2017] VSCA 125
Decision Date: 30 May 2017

CaseChat Overview and Summary

The case of Maybus v The Queen involved an individual who had been convicted on charges of manslaughter, theft, and arson. The defendant sought leave to appeal against the sentence imposed by the court, which included a total effective sentence of 10 years in prison, with a non-parole period of 8 years for the principal offence. The central issue in this case was whether the defendant's plea of guilty to manslaughter was a 'late plea' and if it was entered at the 'first reasonable opportunity'. This question arose due to the significant damage to the credibility of a key Crown witness during the trial, which occurred after the defendant entered their plea of guilty.

The court had to consider the timing and circumstances under which the plea was made, in light of the potential impact on the sentence. The case law of Cameron v The Queen provided a relevant framework for this analysis, specifically focusing on sections 5(2)(e) and 6AAA of the Sentencing Act 1991. The court found that the defendant's plea was not considered a late plea, as it was entered at the first reasonable opportunity following the significant damage to the key Crown witness's credibility. Consequently, the application for leave to appeal was refused, and the sentence was upheld.

The reasoning of the court centred on the principles outlined in Cameron v The Queen, which emphasised the importance of the timing of a plea in relation to the defendant's credit and the circumstances surrounding the plea. The court held that the defendant's plea was not a late plea, and therefore, the sentence was not affected by the timing of the plea. The court further found that the plea was entered at the first reasonable opportunity, given the circumstances of the case, including the significant damage to the credibility of the key Crown witness.

In conclusion, the court determined that the defendant's plea of guilty was not a late plea and was entered at the first reasonable opportunity, as per the principles established in Cameron v The Queen. As a result, the application for leave to appeal was refused, and the original sentence was upheld. The defendant was required to serve a total effective sentence of 10 years' imprisonment, with a non-parole period of 8 years for the principal offence.

Orders