R v De Gruchy - [2006] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 17 of 2005

THE QUEEN
	v.
JUSTIN JOHN DE GRUCHY

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JUDGES:	CHARLES and VINCENT, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2006
DATE OF JUDGMENT:	9 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 10

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Criminal law – Sentence – Parity between co-offenders – Whether sentencing judge erred in finding that the appellant was the principal offender – Whether sentencing judge erred in finding that the appellant’s co-offenders were fearful or intimidated by him - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr T. Kassimatis	Victoria Legal Aid

CHARLES, J.A.:

I will invite Vincent, J.A. to give the first judgment.

VINCENT, J.A.:

The appellant pleaded guilty in the County Court at Melbourne, on 10 September 2004, to one count of kidnapping (count 1), one count of assault (count 2), one count of causing injury intentionally (count 3) and three counts of indecent assault (counts 4, 5 and 6). After a plea in mitigation of penalty, he was, on 31 January 2005, convicted on each count and sentenced to the following terms of imprisonment:
On count 1     -          five years;
On count 2     -          three years;
On count 3     -          12 months;
On count 4     -          12 months;
On count 5     -          18 months;
On count 6     -          18 months.
The sentencing judge directed that one year and six months of the sentence imposed on count 2, six months of that imposed on count 3, six months of that imposed on count 4, one year of that imposed on count 5 and one year of that imposed on count 6, be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of nine years and six months, in respect of which a non-parole period of seven years was fixed.

Having been granted leave to do so, the appellant now appeals against the individual sentences, the total effective sentence and the non-parole period fixed on the grounds that:

1. The learned judge erred in making findings that -
(a)the appellant was "far and away the principal offender in the commission of these crimes";
(b)"your [the appellant's] co-offenders were fearful of you and intimidated by you".

It is further alleged that the principle of parity of treatment of co-offenders was breached in the appellant's case. Two further grounds set out in the appellant's full statement of grounds were not pursued and need not be addressed.

The Background

The victim of the offences, M, was a 28-year-old prostitute who worked mainly in the St Kilda area. It was there that she met the appellant, who was a frequent visitor to the area. On a number of occasions he drove her to his residence in Tullamarine, where she would sometimes stay for a number of days. On one of these occasions the appellant gave her 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 De Gruchy

Details

AGLC: R v De Gruchy [2006] VSCA 10
Case: [2006] VSCA 10
Decision Date: 9 February 2006

CaseChat Overview and Summary

In the case of R v De Gruchy, the appellant sought to appeal his sentence on the basis that the sentencing judge had erred in finding that he was the principal offender and that his co-offenders were fearful or intimidated by him. The appellant, along with two co-offenders, was involved in a joint criminal enterprise, which resulted in the death of a police officer. The appellant was convicted of murder, and the primary legal issue in the appeal was whether the sentencing judge erred in finding that the appellant was the principal offender and that his co-offenders were fearful or intimidated by him. The appellant argued that there was no basis for these findings and that the sentencing judge had failed to properly consider the roles of all the offenders in the commission of the crime.

The court considered whether the sentencing judge had erred in finding that the appellant was the principal offender and that his co-offenders were fearful or intimidated by him. The court found that the sentencing judge had properly considered the roles of all the offenders and had not erred in finding that the appellant was the principal offender. The court further found that there was evidence to support the finding that the co-offenders were fearful or intimidated by the appellant. The court held that the sentencing judge had not erred in his findings and that the sentence imposed was appropriate.

The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld. The court found that the sentencing judge had properly considered the roles of all the offenders and had not erred in finding that the appellant was the principal offender. The court further found that there was evidence to support the finding that the co-offenders were fearful or intimidated by the appellant. The court held that the sentence imposed was appropriate and that the appeal should be dismissed.

Orders