JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	8 December 2016
DATE OF SENTENCE:	1 February 2017
CASE MAY BE CITED AS:	R v Banek
MEDIUM NEUTRAL CITATION:	[2017] VSC 11	First revision: 13 February 2017 paras [65], [83], [125]

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CRIMINAL LAW – Sentence – Murder – Accused, aged 24, tried to kill former de facto wife, aged 20, by punching, kicking and choking – When attempt failed, accused took up knife and stabbed deceased to death – Accused sought to cover up crime until arrested – Full admissions to police – Early plea of guilty – Limited remorse – Relative youth – Accused’s depression impaired judgment, but only moderately – Accused previously gaoled for assaulting deceased twice – Reasonable prospects of rehabilitation – Importance of general deterrence, denunciation, just punishment, specific deterrence, rehabilitation and parsimony – Relevance of current sentencing practices – Sentence of 23 years’ imprisonment with non-parole period of 18 years – But for plea of guilty, sentence of 28 years’ imprisonment with non-parole period of 24 years – Sentencing Act 1991 (Vic), ss 5, 6AAA, 11 & 18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Champion SC DPP with Ms G Coghlan	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr D Gibson (plea) Mr J McLoughlin (sentence)	Victoria Legal Aid

HIS HONOUR:

Overview

On Sunday 13 March last year, Abuk “Jackie” Akek was murdered in her own home in Melton. She was only 20. Her killer – her former de facto partner Makeny “Nelson” Banek, aged only 24 – was enraged that Ms Akek no longer wanted him in her life. As Mr Banek later told police, he considered that Ms Akek had put him in a situation where he said to himself, “Hey, you want me to leave, then I might as well take you with me.” Thus, he made a calculated choice to take the life of Ms Akek, the mother of his two-year-old son, as if somehow it were his prerogative to do so.

From that moment, Ms Akek stood no chance, really. She was small, petite and alone. He was tall, rangy and intent upon killing her. He had beaten her at least twice before – so viciously that he had been gaoled for seven months. And so it was that, having decided to kill her, he beat her again, mercilessly and from room to room in her flat. He punched her. He kicked her. He choked her. He even threw a stereo speaker at her. Yet, despite his strength and the ferocity of his blows, he failed to achieve his ultimate aim by these means.

But, instead of coming to his senses and desisting after such a brutal and protracted yet unsuccessful assault, Mr Banek simply varied his means of attack. This time, he went even further than he had before.…

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 Banek

Details

AGLC: R v Banek [2017] VSC 11
Case: [2017] VSC 11
Decision Date: 1 February 2017

CaseChat Overview and Summary

In the matter of R v Banek, the accused, aged 24, faced the Supreme Court of Victoria in relation to the murder of his former de facto wife, aged 20. The accused had attempted to kill the victim by punching, kicking, and choking her, but when these efforts failed, he resorted to using a knife, which resulted in the victim's death. The accused attempted to conceal the crime until his eventual arrest and made full admissions to police, with an early plea of guilty. The court had to balance the gravity of the offence against the accused's limited remorse, relative youth, and depression, which moderately impaired his judgment.

The legal issues before the court included determining the appropriate sentence for the murder, taking into account the principles of general deterrence, denunciation, just punishment, specific deterrence, rehabilitation, and parsimony. The court also had to consider the relevance of current sentencing practices, as well as the accused's previous imprisonment for assaulting the victim on two separate occasions, and the reasonable prospects of rehabilitation. The court had to weigh these factors against the accused's early guilty plea, which resulted in a reduced sentence.

The Supreme Court of Victoria concluded that the appropriate sentence for the murder was 23 years’ imprisonment, with a non-parole period of 18 years. The court found that the accused's early guilty plea warranted a reduction in the sentence, which would have otherwise been 28 years’ imprisonment with a non-parole period of 24 years. The court took into account the accused's relative youth, limited remorse, and depression, which moderately impaired his judgment, as well as his previous imprisonment for assaulting the victim. However, the court also considered the gravity of the offence, the importance of general deterrence, denunciation, and the reasonable prospects of rehabilitation. The court was satisfied that the sentence imposed would adequately balance all relevant considerations.

The final orders of the court were that the accused be sentenced to 23 years’ imprisonment, with a non-parole period of 18 years, for the murder of his former de facto wife. The court took into account the various factors relevant to sentencing, including the accused's early guilty plea, limited remorse, relative youth, and depression, as well as the gravity of the offence, the importance of general deterrence, denunciation, and the reasonable prospects of rehabilitation. The court was satisfied that the sentence imposed would adequately balance all relevant considerations and serve the interests of justice.

Orders