R v AC - [2015] VSC 323

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0077

Between:

THE QUEEN
and
AC	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	9 September & 10 November 2014
DATE OF SENTENCE:	10 November 2014
DATE OF PUBLICATION OF REASONS:	13 July 2015
CASE MAY BE CITED AS:	R v AC
MEDIUM NEUTRAL CITATION:	[2015] VSC 323

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CRIMINAL LAW – Sentence – Assisting an offender by being an accessory after the fact to murder – Accused, aged 14, participated, with an adult, in burning body of murdered man to ashes – Very low moral culpability for serious offence – Admissions – Early plea of guilty – Undertaking to assist the authorities in the prosecution of co-accused charged with murder – Remorse – No prior convictions – Youth – Excellent prospects of rehabilitation – Accused released on probation without conviction.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Rochford QC	Office of Public Prosecutions
For the Accused	Mr S. Moglia	Dowling McGregor Solicitors

HIS HONOUR:

Introduction

On 11 June 2014, the Director of Public Prosecutions filed an indictment charging “AC” with assisting an offender by being an accessory after the fact to the murder of Nhan Ngoc Doan at Johnsonville in Victoria on or about 7 January 2013. AC pleaded guilty to the charge. He was only 14 years of age at the time of the offence.

On 5 September 2014, after hearing a plea in mitigation, I adjourned the matter for further plea and sentence pending receipt of a pre-sentence report on AC’s suitability for a youth supervision order or probation.

On 10 November 2014, having received the appropriate report, I released AC, without conviction, on a probation order for 12 months, with all of the standard conditions that attach to such an order plus a special condition that he undergo psychological counselling as directed by the Secretary. I gave ex tempore reasons for imposing that sentence.

In the particular circumstances of the case, which included AC’s tender age and that two of his co-accused had outstanding trials, the parties accepted that, if I were to publish detailed reasons for sentence, that should not occur at least until after the conclusion of the proposed trials of the co-accused. Further, AC and those closely connected with him should have their names and any identifying details anonymized. The proceedings against the co-accused have now concluded. Hence the publication of these reasons today but as if at the time of sentence.

Agreed facts

The following is a summary of the agreed facts on the plea:

AC meets Mr Spence and WR in the city

In the early part of January 2013, AC, who was aged 14 at the time, was at Flinders Street Station with friends, when he was approached by Harvey Spence, a man he knew and to whom he was related. Mr Spence asked AC why he was at the station and then asked if he wanted to come with…

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 AC

Details

AGLC: R v AC [2015] VSC 323
Case: [2015] VSC 323
Decision Date: 10 November 2014

CaseChat Overview and Summary

In the matter of R v AC, the respondent, a fourteen-year-old at the time of the offence, was charged with being an accessory after the fact to murder. The body of a murdered man was found, and it was revealed that the respondent had assisted an adult in burning the body to ashes. The case was heard in the relevant court, where the sentencing of the respondent was to be determined. The primary issues before the court were the appropriate sentencing for a juvenile offender with very low moral culpability for such a serious offence, and the consideration of various mitigating factors.

The court considered the respondent's age, lack of prior convictions, admissions, early plea of guilty, undertaking to assist authorities in the prosecution of the co-accused charged with murder, remorse, and excellent prospects of rehabilitation. Given the respondent's very low moral culpability and the presence of significant mitigating factors, the court determined that a more lenient sentence was appropriate. The court acknowledged the gravity of the offence but balanced it against the respondent's youth and the likelihood of rehabilitation.

After weighing the various factors, the court decided to release the respondent on probation without a conviction. This decision was based on the respondent's age, lack of prior criminal history, remorse shown, early guilty plea, and commitment to assist in the prosecution of the co-accused. The court recognised the need for rehabilitation and deterrence, and believed that this outcome would best serve those objectives. The court's decision highlights the importance of considering individual circumstances and the potential for rehabilitation in sentencing juvenile offenders.

Orders