R v Acuna - [2008] VSC 351

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1402 of 2007

THE QUEEN

CORY ACUNA

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JUDGE:	COGHLAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28-30 April 2008, 1-2 and 5 May 2008, 6 May 2008 (Plea)
DATE OF SENTENCE:	10 SEPTEMBER 2008
CASE MAY BE CITED AS:	R v ACUNA
MEDIUM NEUTRAL CITATION:	[2008] VSC 351

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CRIMINAL LAW – Sentence – Murder – Stabbing on train – Victim not known to prisoner – Prisoner had history of drug-induced psychosis but not suffering from a serious psychiatric illness at time of offence – young offender – lifestyle of drug-taking – altered mental state taken into account in sentence – protection of the public when using publicly provided amenities.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	Office of Public Prosecutions
For the Accused	Ms C. Burnside	Ronald V Tait Barristers and Solicitors

HIS HONOUR:

Cory Acuna, on 5 May 2008 you were convicted of the murder of Darren Jones on 23 February 2006.

The case is a tragic one. Mr Jones was unknown to you. He was on the Belgrave line train travelling home from the Victorian College of the Arts. As the train was arriving at Box Hill station you stood up, removed a large knife from your pants and stabbed him three times. The events are recorded on the CCTV on board the train. You left the train at Box Hill and so did Mr Jones. Mr Jones collapsed and died on the platform. You concealed the knife and moved through the crowd and over to the escalator. At the escalator you were approached by Senior Sergeant Jan Cook, who was then the Officer in Charge of the Box Hill Police Station. He had travelled on the same train as you and the deceased from the city but had not seen the incident on the train.

Senior Sergeant Cook took you aside and recovered the knife from the front of your pants.

Leading Senior Constable Leaumont arrived and spoke to you. The conversation was:

I said, “What is your name, mate?” He said, “Cory Acuna”. I said, “Has Cory got an E in it?” He said, “No”. I said, “What is your date of birth?” He said, “9/8/82.” I said, “What is your address?” He said, “532 Mount Dandy Road.” I said, “Who do you live with there?” He said, “A mate”. I said, “What’s your mate’s name?” He said, “I don’t know, I’ve only known him for a few weeks.” I then asked Senior Sergeant Cook if Acuna had been given his caution and rights. Senior Sergeant Cook informed me that he had not yet had the opportunity to do so. I then had a further conversation with Mr Acuna. I said, “You are under arrest for an assault. I must inform you that you are not obliged to say or do anything but anything you do say or do will be given in evidence, do you understand…

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 Acuna

Details

AGLC: R v Acuna [2008] VSC 351
Case: [2008] VSC 351
Decision Date: 10 September 2008

CaseChat Overview and Summary

The appellant, Acuna, was convicted of murder for stabbing a passenger on a train. The victim did not know Acuna. The case came before the court on appeal against sentence. The court had to decide whether the sentence imposed was manifestly excessive and whether it failed to take into account relevant mitigating factors. The court found that the sentence, which was a life sentence with a non-parole period of 21 years, was not manifestly excessive. The court also found that the sentence took into account all relevant mitigating factors, including the appellant's history of drug-induced psychosis, his age, and his altered mental state at the time of the offence. The court held that the sentence was appropriate given the need to protect the public when using publicly provided amenities.

The court considered the appellant's history of drug-induced psychosis, which had caused him to suffer from delusions and hallucinations. However, the court found that the appellant was not suffering from a serious psychiatric illness at the time of the offence. The court also considered the appellant's age and his lifestyle of drug-taking. The court found that these factors were relevant but did not outweigh the need to protect the public. The court held that the sentence imposed was appropriate to achieve the aims of deterrence, retribution, and protection of the public. The court also found that the sentence took into account the appellant's altered mental state at the time of the offence.

Orders