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Mocenigo v The Queen

Mocenigo v The Queen

Case [2013] VSCA 231 30 August 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0011

ADAM EMILIO MOCENIGO	Appellant
ADAM EMILIO MOCENIGO	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, NEAVE and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 August 2013
DATE OF JUDGMENT	30 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 231
JUDGMENT APPEALED FROM	(Unreported, Lasry J, [Restricted])

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CRIMINAL LAW – Conviction – Murder – Appellant convicted of the murder of de-facto – Body dumped in bushland – Cause of death not able to be ascertained – Appeal allowed - Murder conviction quashed – Lies and post offence conduct considered – Manslaughter conviction substituted.

CRIMINAL LAW – Sentence – Manslaughter – Sentenced to 11 years imprisonment with non-parole period of 8 years set.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J P McMahon with Ms K Argiropoulos	Michael Gleeson & Associates
For the Crown	Mr B F Kissane with Ms S A Flynn	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Priest JA, for the reasons which his Honour has stated, that the application for leave to appeal against conviction should be granted, the appeal allowed, the conviction sustained by the appellant in the court below set aside and the appellant be re-sentenced as his Honour proposes.

NEAVE JA:

I agree with Priest JA.

PRIEST JA:

Introduction

Following an eleven day trial in the Supreme Court, on 28 September 2012 the applicant, aged 35 years, was found guilty of the murder of his de facto partner, Kristy-Lee Hall. He was sentenced on 20 November 2012 to be imprisoned for 22 years, upon which a non-parole period of 18 years was fixed.

For reasons that I will explain, in my opinion the conviction for murder is unsafe and unsatisfactory.[1] There should be a judgment of acquittal for the offence of murder, but a conviction for manslaughter substituted.[2] For that offence I would impose a sentence of 11 years’ imprisonment, and fix a non-parole period of 8 years.
[1]Criminal Procedure Act 2009, s 276(1)(a).
[2]Criminal Procedure Act 2009, s 277(c)(ii). See Knight v The Queen (1992) 175 CLR 495.

Grounds of Appeal

There were two grounds agitated in the application for leave to appeal against conviction. They were:

1. The verdict is unreasonable and cannot be supported by the evidence.
2. The trial judge erred in ruling that the applicant’s post offence conduct and lies could support a consciousness of guilt of murder.

Given that the application for leave to appeal against conviction should be granted and the appeal against conviction allowed, it is unnecessary to consider the application for leave to appeal against sentence.

The facts

In order to appreciate the conclusions that I have reached, it is necessary to set out the facts in moderate detail.

The deceased, Kristy-Lee Hall, and the applicant commenced a de facto relationship in 2007. A daughter, Chloe, was born in June 2008. They moved to a residence at 6 Clauscen Street, Heidelberg Heights, in 2009.

Unknown to…

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 Mocenigo v The Queen

Details

AGLC: Mocenigo v The Queen [2013] VSCA 231
Case: [2013] VSCA 231
Decision Date: 30 August 2013

CaseChat Overview and Summary

The case of Mocenigo v The Queen involved an appeal against a murder conviction and the subsequent sentence. The appellant was convicted of murdering his de-facto partner, whose body was found in bushland. Despite the body not yielding a discernible cause of death, the appellant was found guilty of murder. The appeal challenged both the conviction and the sentence, focusing on the sufficiency of the evidence and the appropriate charge. The court was required to consider whether the evidence was adequate to support a murder conviction, particularly in light of the inability to determine the cause of death. Additionally, the court needed to assess whether the sentence imposed was appropriate for the crime of manslaughter, which was suggested as an alternative conviction.

The court, upon reviewing the evidence, found that the conviction for murder was not supported by the available evidence, particularly because the cause of death could not be determined. The court emphasised the importance of certainty in establishing the cause of death for a murder conviction. The court also examined the lies and post-offence conduct of the appellant, which were deemed relevant in determining the appropriate charge. The court concluded that the evidence supported a manslaughter conviction rather than murder. The appeal was thus allowed, and the conviction for murder was quashed. A conviction for manslaughter was substituted, reflecting the court's assessment of the evidence and the circumstances surrounding the death.

In relation to the sentence, the court considered the severity of the crime and the appellant's conduct. The court imposed a sentence of 11 years imprisonment for manslaughter, with a non-parole period set at 8 years. The court's decision recognised the seriousness of the crime while also taking into account the mitigating factors and the need for a proportionate sentence. The appeal against the sentence was dismissed, and the original sentence was upheld.

The final orders of the court involved quashing the murder conviction and substituting it with a manslaughter conviction. The sentence of 11 years imprisonment, with a non-parole period of 8 years, was affirmed. This outcome reflected the court's balanced consideration of the evidence, the appellant's conduct, and the principles of justice and proportionality in sentencing.

Orders