R v Chol

Case [2022] VSC 341 20 June 2022

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0328

THE QUEEN	Crown
v
PETER CHOL	Accused

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March and 26 May 2022
DATE OF SENTENCE:	20 June 2022
CASE MAY BE CITED AS:	R v Chol
MEDIUM NEUTRAL CITATION:	[2022] VSC 341

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SENTENCE — Upper mid-range example of manslaughter by unlawful and dangerous act — 15-year-old offender stabbed 17-year-old offender once in the abdomen — Plea of guilty at first reasonable opportunity — Plea of guilty in a pandemic — Remorse — No prior convictions — Verdins principles 1, 3 and 4 applicable to a modest extent — Whether YJC sentence of detention open — Whether exceptional circumstances made out — Sentence of 4 years’ detention in a YJC imposed — Time on remand (approximately 12 months) not declared as time served — Boulton v R [2014] VSCA 34; 46 VR 308 — Brown v R [2020] VSCA 212; 62 VR 491 — DPP v SJK [2002] VSCA 131 — Director of Public Prosecutions v Kilpatrick [2019] VSC 779 — R v Mohamed & Ors [2008] VSC 299 — R v PP [2003] VSCA 100; 142 A Crim R 369 — R v Verdins [2007] VSCA 102; (2007) 16 VR 269 — Worboyes v The Queen [2021] VSCA 169; 96 MVR 344 — Crimes Act 1958, s 5 — Sentencing Act 1991, ss 32–35.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R Harper	Office of Public Prosecutions
For the Accused	Mr P Morrissey SC with Mr D DeWitt	Anthony Isaacs

HIS HONOUR:

Peter Chol,[1] you pleaded guilty to manslaughter, which carries a maximum penalty of 25 years’ imprisonment.[2] You were only 15 years old on 7 May 2021 when you fatally stabbed your victim, who was only 17.
[1]A pseudonym has been used since the offender is a child.
[2]Crimes Act 1958, s 5.

CIRCUMSTANCES OF OFFENDING
Lead up

You and the victim were known to each other. You were both members of a social media group, which used the Instagram and Snapchat apps to communicate.[3] The group also socialised and played basketball together.
[3]Summary of Prosecution Opening on Plea [8].

One afternoon in the week before your offence, some members of the group met at a McDonald’s and engaged in play fights. On this day, you and the victim commenced a play fight against each other. At some point, the fight turned serious. The victim punched you, and you fell to the ground before getting up and stomping off. After the fight, the victim was filmed yelling ‘nobody cheap shots… ’. You were angry about the fight and wanted to fight the victim again, but he did not want to.[4]
[4]Summary of Prosecution Opening on Plea [9]–[13].

Offence

On 7 May 2021, both you and the victim attended a basketball Stadium to play basketball. The victim arrived at the stadium about…

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 Chol

Details

AGLC: R v Chol [2022] VSC 341
Case: [2022] VSC 341
Decision Date: 20 June 2022

CaseChat Overview and Summary

The defendant, Chol, pleaded guilty to manslaughter by unlawful and dangerous act after stabbing a 17-year-old offender in the abdomen, leading to their death. The case was heard by the Supreme Court of Victoria. The key legal issues were whether a Youth Justice Conference (YJC) sentence of detention was appropriate and if exceptional circumstances existed to justify a departure from the usual sentencing principles.

The court considered the principles outlined in Verdins, particularly principles 1, 3, and 4, which relate to the culpability of the offender, the nature and circumstances of the offence, and the offender's personal circumstances. The court recognised that Chol's plea of guilty, remorse, and lack of prior convictions were mitigating factors. However, the offence involved a stabbing, which was inherently dangerous and led to the death of the victim. The court determined that, while the principles of Verdins applied, they did so to a modest extent given the gravity of the offence.

After careful consideration, the court decided that a YJC sentence of detention was appropriate, given the offender's age and the mitigating factors. The court found that exceptional circumstances existed due to the pandemic, which affected the plea process. Consequently, the court imposed a sentence of four years' detention in a YJC, with the time spent on remand (approximately 12 months) not counted as time served. This decision balanced the need for deterrence and rehabilitation with the specific circumstances of the case.

The final orders of the court included a sentence of four years’ detention in a YJC, with the time on remand not declared as time served, and a direction for the preparation of a pre-sentence report.

Orders