R v A O - [2009] VSC 13

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1625 of 2007

THE QUEEN

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2008
DATE OF SENTENCE:	28 January 2009
CASE MAY BE CITED AS:	R v AO
MEDIUM NEUTRAL CITATION:	[2009] VSC 13

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CRIMINAL LAW – Plea – Manslaughter and armed robbery – Prisoner 16 years old at time of offence – Originally charged with murder – Prisoner born in Ethiopia, migrated to Australia at 12 years of age – Grew up in environment of poverty and civil unrest – Under influence of alcohol at time of offending – Prisoner’s youth important principle in determining sentence – consideration of prisoner serving sentence in a Youth Justice Centre pursuant to s 471 of the Children, Youth and Families Act 2005 – Sentenced to a total effective sentence of eight years with a minimum non-parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman SC	Office of Public Prosecutions
For the Accused	Mr G. Mulally	Andrew George Solicitors

HIS HONOUR:

AO, on 2 September 2008 you pleaded guilty before me to one count of the manslaughter of Leong Lim and one count of armed robbery. You had originally been charged with murder, but the Crown accepted your plea. The resolution of the matter in that way was merciful, but in all the circumstances, particularly those relating to your background and age at the time of the offending, that resolution was appropriate.

The events which bring you here can be stated briefly. On 3 March 2007 you killed Leong Lim by hitting him on the head with what was probably a “Passion Pop” bottle. You then stole Mr Lim’s wallet, which contained some money, and his mobile phone. You were then 16 years of age. You were under the influence of alcohol. It is accepted that you did not intend to kill Mr Lim or cause him really serious injury, rather that you formed the intent to attack him and cause him some injury which a reasonable person in your position would have appreciated was likely to cause at least serious injury. It follows also that the Crown accepts that you had not formed the intention to steal at the time you first attacked Mr Lim and caused his fatal injuries, but that, having attacked him and disabled him, you decided to steal what he had with him. Otherwise, the question of murder pursuant to s 3A of the Crimes Act 1958 would have arisen.

On the night of 2 March 2007, Mr Lim had gone to Sandown Racecourse Tabaret. He left those premises shortly after midnight. By about 12.30 a.m. on 3 March 2007 he had reached the intersection of Springvale Road and Bailey Court, Springvale. It seems logical to assume that Mr Lim was on his way home when you attacked him. Mr Lim, who was a Malaysian citizen, was living alone in Australia. He…

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 R v A O

Details

AGLC: R v A O [2009] VSC 13
Case: [2009] VSC 13
Decision Date: 28 January 2009

CaseChat Overview and Summary

In the case of R v A O, the defendant faced charges relating to manslaughter and armed robbery, having committed the offences at the age of 16. The case was heard and determined in an Australian court, where the defendant's background and circumstances at the time of the offence were central to the proceedings. The defendant, who was born in Ethiopia and migrated to Australia at the age of 12, had grown up in a milieu of poverty and civil unrest. At the time of the offence, he was under the influence of alcohol. The court was tasked with determining the appropriate legal issues surrounding the plea, the defendant's age, background, and the circumstances of the offence in the context of sentencing.

The court had to address several key legal issues, including the appropriate sentence for a 16-year-old offender who had committed serious crimes under the influence of alcohol. Additionally, the court considered whether the defendant should be sentenced under the provisions of the Children, Youth and Families Act 2005, which would have allowed for the possibility of the defendant serving part of his sentence in a Youth Justice Centre. The youth of the offender and his background, including the environment in which he had grown up, were critical factors in determining the sentence.

In delivering its judgment, the court gave significant weight to the defendant's age and background, recognising the influence of his upbringing and circumstances on his actions. The court found that while the crimes were serious, the defendant's youth and background warranted a sentence that included rehabilitation and the possibility of serving part of his sentence in a Youth Justice Centre. The court sentenced the defendant to a total effective sentence of eight years, with a minimum non-parole period of four years, balancing the need for punishment with the opportunity for rehabilitation. The court's decision underscored the importance of considering the unique circumstances of young offenders in the sentencing process.

Orders