R v BA - [2019] VSC 90

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0037; S CR 2018 0038

THE QUEEN
v
BA BRENDAN STANLEY	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2018
DATE OF SENTENCE:	22 February 2019
CASE MAY BE CITED AS:	R v BA and Stanley
MEDIUM NEUTRAL CITATION:	[2019] VSC 90

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CRIMINAL LAW – Sentence – Manslaughter – Pleas of guilty – Killing during enforcement of drug debt – Serious offending – Victim abandoned – Attempt to dispose of body – Attempt to sever feet to manoeuvre body into barrel – Attempt to incinerate the body – Prior criminal history – Subsequent criminal history – No declaration for pre-sentence detention – Sentencing Act 1991 (Vic) ss 6AAA, 16(3C).

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr M. Rochford QC with
Ms G. Coghlan

Office of Public Prosecutions

For BA

For Brendan Stanley

Mr M. Thomas with
Mr R. de Kretser

Mr S. Tovey with
Mr H. Rattray

Valos Black & Associates

Hannebery Law

HIS HONOUR:

BA and Brendan Stanley, on 19 November 2018, in this Court, you each pleaded guilty to one count of the manslaughter of David Whimpey. His death occurred on 24 October 2016 and, at the time, he was aged 30 years. You had both originally been charged with the murder of David Whimpey.

In the proceedings in this Court on 29 November 2018, I heard the prosecution opening, Victim Impact Statements, submissions on behalf of each of you in relation to the sentence that I should impose, and legal submissions on that topic from all counsel.

The cause of the delay from 29 November until today has primarily been the notice of forfeiture filed by the prosecution in relation to real estate property connected with this matter. The sentence depended on the outcome of that application. That application has since been withdrawn.

The maximum penalty for the offence of manslaughter is 20 years’ imprisonment, and it is now my responsibility to sentence both of you in relation to this offence.

Circumstances of offending

The death of Mr Whimpey occurred in circumstances where he owed money to you, BA, in relation to what was effectively a drug debt. The attack on the deceased occurred in circumstances where you, BA, as the instigator, and you, Brendan Stanley, as his assistant, intended to physically confront the deceased man for the purpose of recovering the money that was owing to Mr A.

Mr Whimpey was, by trade, an automotive electrician. Between March 2016 and his death in October 2016, he had ceased working and, as is prevalent amongst all the participants in this case, had engaged in significant drug use during that period.

You, BA, had known the deceased since attending secondary school together. In more recent times, you and he were involved in the use of drugs and, as I follow it, you were his drug supplier.

You, Brendan Stanley, came to know Mr A through 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 BA

Details

AGLC: R v BA [2019] VSC 90
Case: [2019] VSC 90
Decision Date: 22 February 2019

CaseChat Overview and Summary

In the matter of the Crown versus BA, the defendant stood before the court charged with manslaughter. The incident in question arose from the enforcement of a drug debt, which escalated to the victim's death. BA pleaded guilty to the crime, acknowledging his involvement in the killing and subsequent attempts to conceal the evidence of his crime. The court was tasked with determining an appropriate sentence, considering the gravity of the offence, the defendant's criminal history, and the circumstances surrounding the death.

The court was required to deliberate on various legal issues, including the severity of the crime, the defendant's culpability, and the need for deterrence and rehabilitation. The circumstances of the victim's abandonment, the defendant's actions to dispose of the body, and the subsequent criminal activity post-offence were all critical in assessing the seriousness of the offence. Additionally, the court had to weigh the defendant's prior and subsequent criminal conduct against his plea of guilty and any mitigating factors.

The court found that the crime was of considerable gravity, marked by the defendant's brutal actions and attempts to cover up the crime. It noted the defendant's prior and subsequent criminal activities, which underscored a pattern of serious offending. Despite the plea of guilty, the court emphasised the need for a sentence that appropriately reflects the seriousness of the offence and serves as a deterrent. After considering all the evidence and legal principles, the court determined that the defendant should be sentenced to a term of imprisonment, with specific regard to the provisions of the Sentencing Act 1991 (Vic).

The final orders of the court mandated that BA be remanded into custody and serve a specified term of imprisonment, reflecting the gravity of his crime and the need for both punishment and rehabilitation. The court also considered the need for the sentence to align with the objectives of the Sentencing Act, ensuring justice is served for the victim and the community.

Orders