CRIMINAL LAW — Sentencing — Manslaughter — Provocation — Manifest excess —Perceived threats of death to accused and his family — Manslaughter of the gravest kind — Sentence of 15 years’ imprisonment with a non-parole period of 13 years — Effective sentence 19 years’ and one month imprisonment with a non-parole period of 13 years — Maximum penalty — Relevance of increase in maximum from 15 to 20 years — Sentencing Act 1991 s 14(1), s 16(3C) — Re-sentenced — Non-parole period of 11 years’ imprisonment imposed.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J D McArdle QC
Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant
Mr O P Holdenson QC
Valos Black and Associates
WARREN CJ, MAXWELL P, REDLICH JA:
The appellant (AB) was presented at trial in the Supreme Court on one count of murder. The jury returned a verdict of not guilty of murder but guilty of manslaughter. On 10 March 2006, AB was sentenced to 15 years’ imprisonment, which was to be served cumulatively upon a four year sentence and a one month sentence previously imposed in respect of separate crimes, giving a total sentence of 19 years and one month. The trial judge imposed a new non-parole period of 13 years in respect of all the sentences, effective from the date of sentencing. AB lodged a notice of application for leave to appeal against the sentence and leave to appeal was granted.
There were initially five grounds of appeal, as follows:
(a) both the head sentence and the non-parole period were manifestly excessive;
(b) the total effective sentence was manifestly excessive and offended the principle of totality;
(c) too much weight was attached to deterrence and denunciation;
(d) undue weight was attached to the increase of the maximum penalty for the crime of manslaughter in 1997; and
(e) insufficient weight was given to various mitigating factors.
Leave was sought to add further grounds which, in substance, alleged that findings of fact had been made by the trial judge which were not open to him and which resulted in AB being sentenced for more serious conduct than the offence of which he had been found guilty.[1]
The circumstances of the offending[2]
[1]See [24] below.
[2]The narrative which follows is based on the reasons for sentence and on AB’s record of interview.
On 9 September 2003, AB killed Housam Zayat using an unlicensed pistol grip pump action 12 gauge shotgun. The offence occurred after the release of Zayat from prison on bail on 2 September 2003.
AB had met Zayat in prison and kept in contact after his release. They had known each other for ten years leading up to Zayat’s death. Zayat was described…
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.
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Details
AGLC
R v AB (No 2) [2008] VSCA 39
Case
[2008] VSCA 39
Decision Date
CaseChat Overview and Summary
In this case, the appellant, AB, appealed against his sentence for manslaughter. The appeal was heard in the Court of Criminal Appeal. AB had killed his victim in response to threats that were perceived to be directed at him and his family. The Crown accepted that AB was provoked, but argued that the killing was nevertheless a response of manifest excess. AB argued that he was provoked by the perceived threats, which amounted to an attack on his family, and that the sentence should be reduced.
The court was required to determine whether AB's killing was a response of manifest excess to the provocation, and whether the maximum penalty of 20 years' imprisonment was relevant to the sentencing of AB. The court was also required to consider whether the non-parole period should be reduced.
The court found that AB's killing was a response of manifest excess to the provocation. The court held that the maximum penalty of 20 years' imprisonment was not relevant to the sentencing of AB because the offence was committed before the increase in the maximum penalty. The court also found that the non-parole period should be reduced to 11 years' imprisonment. The court held that the original sentence of 15 years' imprisonment with a non-parole period of 13 years was manifestly inadequate, and that the effective sentence of 19 years' and one month imprisonment with a non-parole period of 13 years was also manifestly inadequate. The court imposed a non-parole period of 11 years' imprisonment.
This appeal against sentence is allowed. The sentence is quashed. A sentence of 15 years' imprisonment with a non-parole period of 11 years' imprisonment is imposed.