R v Allan - [2019] VSC 18

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WANGARATTA

CRIMINAL DIVISION

S CR 2018 0095

THE QUEEN
v
JACOB THOMAS ALLAN	Accused

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JUDGE:	Lasry J
WHERE HELD:	Wangaratta
DATES OF HEARING:	30 January 2019
DATE OF SENTENCE:	31 January 2019
CASE MAY BE CITED AS:	R v Allan
MEDIUM NEUTRAL CITATION:	[2019] VSC 18

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CRIMINAL LAW – Sentence following plea – Manslaughter by unlawful and dangerous act – Altercation in street – Accused punched deceased to the face, causing deceased to fall a second time – Accused kicked motionless deceased to the upper body and stomped on deceased’s head more than once, and multiple times again later while unconscious – Accused injured in further altercation with others – Objective gravity of offence severe in particularly vicious attack – Prior convictions – Graduation of offending to extreme violence – Offending whilst on community correction order – Some, but not overwhelmingly strong, remorse – Weight to general and specific deterrence, denunciation, and protection of the community – Prospects of rehabilitation possible, but limited – Plea of guilty, albeit late – Sentence of ten years’ imprisonment with non-parole period of seven years – But for plea of guilty, sentence of twelve years’ imprisonment with non-parole period of nine years – Sentencing Act 1991 (Vic) ss 5, 6, 6AAA, 18; Crimes Act 1958 (Vic) s 5.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K. Doyle with Mr G. Hayward	Office of Public Prosecutions
For the Accused	Mr R. Nathwani	Haines + Polites

HIS HONOUR:

Overview

Jacob Thomas Allan, on 21 January 2019 in this Court in Melbourne, you pleaded guilty to the manslaughter of Russell Craig Berry. The maximum penalty for manslaughter is 20 years imprisonment.

On 30 January 2019, in Wangaratta, you were once more arraigned on the charge of manslaughter and you again pleaded guilty to that charge. That arraignment occurred so that family and friends of the deceased man and the people from the Wangaratta area who wished to do so could witness the procedure. This Court had previously ordered that your trial be heard in Wangaratta.

On 30 January 2019, I heard the prosecutor open the case. I then heard submissions on your behalf and on behalf of the Director of Public Prosecutions as to the sentence that should be imposed on you. It is now my responsibility to sentence you for that offence.

The charge of manslaughter that you have pleaded guilty to is manslaughter by unlawful and dangerous act.

Circumstances of offending

It is first necessary to outline briefly the circumstances of your offending and what occurred during the incident leading to Mr Berry’s death.

The incident that resulted in Mr Berry’s death occurred during an altercation in the early hours of 20 May 2017 near premises at Unit 1, 12 White Street, Wangaratta. That address was the home of James Ferguson, who was a friend of the deceased man and witness to what occurred, particularly in relation to your actions in attacking the…

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 Allan

Details

AGLC: R v Allan [2019] VSC 18
Case: [2019] VSC 18
Decision Date: 31 January 2019

CaseChat Overview and Summary

In the case of R v Allan, the respondent was charged with manslaughter following a violent altercation in the street that resulted in the death of the deceased. The matter was heard in the County Court of Victoria. The respondent, who had a history of prior convictions, attacked the deceased by punching them to the face, causing them to fall. Despite the deceased being motionless, the respondent continued to kick and stomp on the deceased’s upper body and head, both while the deceased was unconscious and later when they were again unconscious following a further altercation with other individuals.

The court was required to determine the appropriate sentence for the respondent, considering the severity and nature of the offence, the circumstances in which it occurred, and the respondent's background. Key issues included the gravity of the offence, the objective circumstances of the killing, the respondent's level of remorse, and the impact of the plea of guilty. The court also needed to weigh the principles of general and specific deterrence, denunciation, and the protection of the community against the prospect of rehabilitation.

The court found that the respondent’s actions constituted a particularly vicious attack, and the gravity of the offence was severe. Despite the respondent’s late plea of guilty, the court considered it to some extent in determining the sentence. The court also noted the respondent’s history of escalating violence and offending while on a community correction order. Although the respondent showed some remorse, it was not overwhelmingly strong. Balancing all these factors, the court sentenced the respondent to ten years’ imprisonment, with a non-parole period of seven years. Had the respondent not pleaded guilty, the sentence would have been twelve years’ imprisonment with a non-parole period of nine years.

The court made orders for the sentence to be served in accordance with the Sentencing Act 1991 (Vic) and the Crimes Act 1958 (Vic), taking into account the statutory provisions related to sentencing and the gravity of the offence.

Orders