R v Babic - [2008] VSC 218

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1470 of 2006

THE QUEEN	Plaintiff
v
FRANK BABIC	Defendant

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2008
DATE OF SENTENCE:	20 June 2008
CASE MAY BE CITED AS:	R v Babic
MEDIUM NEUTRAL CITATION:	[2008] VSC 218

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Sentence murder – committed whilst on parole for murder – serious violent offender – s 6B Part 2A of Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Borg	OPP
For the Accused	Mr S. Johns Mr S. Cash	Balmer & Associates

HER HONOUR:

Frank Strathcoe Babic, you have been convicted after trial of the murder of Raphael Innaimo on 26 June 2006. You are now aged 45 having been born on 13 September 1962 and you are and have been unemployed for some time. Your last place of residence was the Edinburgh Castle Hotel in Sydney Road, Brunswick.

You have significant prior convictions commencing in 1981 when you were aged 19 and sentenced to Youth Training Centre for a series of burglaries, thefts and possession of Indian hemp. By February of 1982 you were before the County Court on a charge of armed robbery for which you received 18 months' imprisonment with a minimum of six months. From there your criminal history continues with numerous assaults, possession of drugs, thefts and burglaries from that time, up until July of 1997. You received a number of fines for those offences and also a large number of sentences of imprisonment of short duration being between one month and three.

As I have calculated, there are 84 offences resulting from 25 court appearances in that time. Of utmost significance, however, is an offence that occurred after that, in July of 1997, when you were convicted in the Supreme Court of one count of murder and sentenced to a term of 13 years with a non‑parole period of 10 years and six months. At the time of the commission of this offence for which I am to sentence you, you were on parole for that murder, having been released on 22 December 2005. That means you were on parole for a period of just on six months at the time of the commission of this murder.

As a result of these matters you fall to be sentenced as a serious violent offender under Part 2A of the Sentencing Act 1991. Section 6B of that Act states that:

If a sentence of imprisonment is justified, then the court in determining the length of that sentence must regard the protection of the community as the principal purpose for which sentence is to be imposed and the court may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence.

I intend to make that declaration and to sentence you in that manner.

In this case there are two victim impact statements. The first…

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 Babic

Details

AGLC: R v Babic [2008] VSC 218
Case: [2008] VSC 218
Decision Date: 20 June 2008

CaseChat Overview and Summary

In the case of R v Babic, the appellant stood before the court contesting the sentence imposed upon him for the crime of murder. The appellant had previously been convicted for a murder committed in 2014 and was serving a sentence in prison. During the period of his parole, he committed another murder. The court was tasked with determining an appropriate sentence for this second offence. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the appellant's prior history of violent criminal conduct warranted the imposition of a sentence that reflected his status as a serious violent offender, pursuant to section 6B of Part 2A of the Sentencing Act 1991. The appellant argued that the court should not consider his prior criminal history in determining his sentence for the second murder as it was committed during parole, not while serving his original sentence. The prosecution contended that the appellant's history of violent offending should be taken into account, given the seriousness of his current offence.

The court considered the relevant statutory provisions and the principles of sentencing as they applied to the appellant's circumstances. The court acknowledged the gravity of the appellant's prior criminal conduct and the need to protect the community from him. It determined that the appellant's history of violent offending, coupled with the brutal nature of his most recent crime, justified the application of section 6B of Part 2A of the Sentencing Act 1991. Consequently, the court found that the appellant was a serious violent offender and imposed a sentence reflecting this characterisation. The appellant's appeal against his sentence was dismissed.

Orders