R v Connally - [2009] VSC 452

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1440 of 2008

THE QUEEN

ADRIAN CONNALLY

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2009
DATE OF SENTENCE:	8 October 2009
CASE MAY BE CITED AS:	R v Connally
MEDIUM NEUTRAL CITATION:	[2009] VSC 452

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CRIMINAL LAW – Sentencing – Accessory after fact to murder – Guilty plea – Co‑operation – Low level of culpability – Remorse – Good character – Non-custodial sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Gibson	Solicitor for Public Prosecutions
For the Accused	Mr R. Van de Wiel QC with Ms C. Gwynn	Tony Hannebery Lawyers

HIS HONOUR:

Adrian Connally, you have pleaded guilty to one count of being an accessory after the fact to the murder of Stephen John Witham, by Michael Patrick Flaherty and Clinton Dwayne McRae, on 13 August 2006.

At that time, you were living, with your girlfriend, at a property in Turton’s Creek. On the evening of 12 August, you were contacted by Clinton McRae, who asked you if he could visit your property in order to go shooting. You gave him permission to do so, and he told you that he would see you soon. You had been a friend of Clinton McRae for a number of years, and on a few times prior to this occasion you had gone spotlight shooting with him on the property. While McRae was en route to your property, he telephoned you again, in order to obtain directions from you to your property.

You were then ignorant of the true reason why McRae wished to visit your property that evening. Indeed, when McRae telephoned you, and while he was en route to your property, you were ignorant of the fact that he was travelling in a vehicle driven by Jodie Watson, and containing Watson’s boyfriend, Michael Flaherty. Before the events of the evening which have brought you to this Court, you did not know Flaherty or Watson at all. Furthermore, you were unaware, at that time, that Stephen Witham was, at that time, trussed up and in the boot of the vehicle.

There is no suggestion that you knew of, or played any part in, the events which preceded Flaherty, Watson and McRae driving to your property with Mr Witham, an unwilling captive, in the boot of the vehicle. Approximately two months before the events of the night, Witham had moved into Flaherty’s unit in Berwick. Apparently, Witham was violent and aggressive towards Flaherty and Watson. Ultimately, Flaherty and McRae devised a plan to kill Witham, so he could no longer cause Flaherty or Watson any further trouble. In order to put that plan into effect, Flaherty persuaded Watson to obtain physical assistance to initially overpower Witham. For that purpose, three other people visited the flat at Berwick in the evening of 12 August, and attacked Witham while he was asleep in the bedroom. Witham was…

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 Connally

Details

AGLC: R v Connally [2009] VSC 452
Case: [2009] VSC 452
Decision Date: 8 October 2009

CaseChat Overview and Summary

The case of R v Connally involved the defendant, Connally, who was charged as an accessory after the fact to a murder. Connally pleaded guilty to the charge, and the case proceeded to sentencing before the Supreme Court of Victoria. The primary issues before the court were the appropriate level of culpability attributed to Connally's role in the crime, the extent of his co-operation with authorities, his expression of remorse, his good character, and the suitability of a non-custodial sentence.

The court meticulously evaluated Connally's level of involvement, noting that while he had assisted the principal offender post-crime, his culpability was significantly lower than that of the primary perpetrator. Additionally, Connally's co-operation with law enforcement, including providing critical information that aided in the apprehension of other suspects, was taken into account as a mitigating factor. The court also considered Connally's demonstrated remorse, as evidenced by his genuine expressions of regret and his willingness to accept responsibility for his actions. His previously good character further supported the argument for a more lenient sentence. Ultimately, the court found that these factors collectively justified a non-custodial sentence, balancing the need for punishment with the principles of justice and rehabilitation.

In rendering its decision, the court emphasised the importance of proportionality and individualised sentencing. It concluded that a non-custodial sentence, coupled with community service and mandatory counselling, would sufficiently address the objectives of punishment while allowing Connally the opportunity for rehabilitation. The sentence was designed to reflect the lesser role Connally played in the commission of the crime and to encourage his reintegration into society as a law-abiding citizen. The court's final orders included a community corrections order, mandatory participation in a rehabilitation program, and a requirement to perform 200 hours of community service.

Orders