JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2019
DATE OF SENTENCE:	31 May 2019
CASE MAY BE CITED AS:	R v Considine and anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 386

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CRIMINAL LAW – Sentence – Murder – Strangulation – Plea of guilty – Intention to cause really serious injury – Mid-range of seriousness – Remorse – Complex personality makeup, involving an acquired brain injury, borderline personality disorder and low intellectual functioning – Sentence of imprisonment likely to be more burdensome – General deterrence, denunciation and just punishment – Prospects of rehabilitation guarded – Sentence of 21 years’ imprisonment with non-parole period of 16 years.

CRIMINAL LAW – Sentence – Assist offender – Assisted principal offender by assisting to move the body into a bin, cleaning the floor and lying to police – Early plea offer not accepted – Plea of guilty – Assistance to police – Remorse – Good prospects of rehabilitation – Sentence of one year and ten months’ imprisonment – Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Brown with Ms S. Lenthall	Office of Public Prosecutions
For Jason Considine	Mr A. Lewis with Ms D. Caruso	Leanne Warren & Associates
For Natasha Hogan	Mr G. Casement	James Dowsley & Associates

HIS HONOUR:

Introduction

Jason David Considine, on 16 November 2018, you pleaded guilty to the murder of Ashley Wayne Phillips. The maximum penalty for the offence of murder is life imprisonment.[1]
[1]Crimes Act 1958 (Vic) s 3(1)(a).

Natasha Krystal-Ly Hogan, also on 16 November 2018, you pleaded guilty to the charge of assist offender. The maximum penalty for this offence, where the principle offence is murder, is 20 years’ imprisonment.[2]
[2]Ibid s 325(4)(a).

At the time of his death, Mr Phillips was 45 years old. He was working as a storeman and living at his mother’s house in Broadmeadows in a converted garage.

At the time of the offending, Mr Considine was 34 years old, Ms Hogan was 25, and you had been in a relationship with each other for approximately nine years. Ms Hogan became pregnant with your first child while completing Year 11, and gave birth in 2010. Your relationship has been interrupted on several occasions, when Mr Considine served periods of imprisonment. During these periods, Ms Hogan formed relationships with other men and, in 2012, had another child. I am told Mr Considine has treated this child as his own, despite not being the biological father.

Your relationship has involved homelessness, drug use and domestic violence. Nevertheless, you remain supportive of each other, and are currently permitted weekly phone calls.

Circumstances of the offending

In September 2015, while Mr Considine was serving a term of imprisonment, Ms Hogan and Mr Phillips met on Facebook. They commenced an…

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 Considine

Details

AGLC: R v Considine [2019] VSC 386
Case: [2019] VSC 386
Decision Date: 31 May 2019

CaseChat Overview and Summary

The case of R v Considine involves a dispute over sentencing for two offences related to the murder of a person. The case was heard in the Supreme Court of Victoria. The primary offender, Considine, pleaded guilty to the murder of a woman by strangulation, while the co-defendant pleaded guilty to assisting the offender.

The legal issues before the court included determining the appropriate sentence for the primary offender, who had a complex personality makeup involving an acquired brain injury, borderline personality disorder, and low intellectual functioning, and assessing the sentence for the co-defendant, who assisted in moving the body and lying to the police. The court had to weigh factors such as the nature of the offence, the offender's remorse, the prospects of rehabilitation, and the principles of general deterrence, denunciation, and just punishment.

In delivering the judgment, the court noted the severity of the primary offender's crime, the intention to cause really serious injury, and the mid-range of seriousness of the offence. Despite the offender's remorse and complex personality, the court determined that a sentence of imprisonment was likely to be more burdensome for Considine. Balancing the need for general deterrence, denunciation, and just punishment, the court sentenced the primary offender to 21 years’ imprisonment with a non-parole period of 16 years. For the co-defendant, the court considered the early plea offer not accepted, the assistance to police, and the good prospects of rehabilitation, resulting in a sentence of one year and ten months’ imprisonment.

The court made clear orders for both defendants in line with their respective sentences, highlighting the gravity of their crimes and the importance of the principles of sentencing.

Orders