R v Disher - [2007] VSC 269

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1435 of 2007

THE QUEEN

JOHN WADE DISHER

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JUDGE:	BONGIORNO J
WHERE HELD:	Bendigo and Melbourne
DATE OF HEARING:	25 June 2007
DATE OF SENTENCE:	23 July 2007
CASE MAY BE CITED AS:	R v Disher
MEDIUM NEUTRAL CITATION:	[2007] VSC 269

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Criminal Law – Sentence – Manslaughter – Unlawful and dangerous act – Impaired mental functioning – Reduction in moral culpability – Extent to which general deterrence excluded or modified – R v Tsiaras [1996] 1 VR 398; R v Verdins [2007] VSCA 102.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Solicitor	OPP
For the Accused	Mr G Hughan	Stella Stuthridge & Associates

HIS HONOUR:

John Wade Disher, on 25 June 2007 you pleaded guilty in the Bendigo Supreme Court to the manslaughter of Raymond Roelofs on 9 August 2006. You had originally been charged with Roelofs' murder but the Crown accepted your plea of guilty to manslaughter instead of proceeding with the murder charge. This was an entirely appropriate course of action for the Crown to take in the circumstances. Having regard to your mental state at the time you killed Roelofs, it is extremely unlikely that the Crown would have been able to prove that you intended to kill or inflict really serious injury upon him. Thus a conviction for murder would not have been sustained. The Crown accepts, as you do by your plea, that you unlawfully killed Raymond Roelofs by an unlawful and dangerous act. It is now my duty to sentence you for the manslaughter of Roelofs according to law.

Not long before dawn on 9 August 2006, you went with two other men, Burns and Elliot, to the deceased's home. Your purpose in doing so was to continue a drinking binge which you had commenced the previous evening. Some time after arriving at Roelofs' home, an altercation broke out between you and him. You commenced to attack him violently and attempts by Burns and Elliot to restrain you were unsuccessful. You punched Roelofs in the face repeatedly, bashed his head into the side of a coffee table, kicked him in the head several times and stomped on his head several times. After the assault you left Roelofs’ house with Burns and later tried to burn your bloodstained clothing at his house. Elliot called an ambulance, which attended at about five past six in the morning, but despite the best endeavours of those who subsequently attended him, Roelofs died a short while later.

A subsequent autopsy conducted by a forensic pathologist, Dr David Ranson, determined the cause of death to be blunt trauma to the head, neck and chest. Evidence before this Court amply demonstrates the injuries which led Dr Ranson to that opinion.

You were arrested early in the afternoon of the same day. You were interviewed by police, in which interview you said you had been drinking with Burns and Elliot in the evening…

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 Disher

Details

AGLC: R v Disher [2007] VSC 269
Case: [2007] VSC 269
Decision Date: 23 July 2007

CaseChat Overview and Summary

In the case of R v Disher, the respondent was convicted of manslaughter following the death of the victim during an altercation. The Court of Appeal was tasked with determining the appropriate sentence for the respondent, who had a history of mental health issues. The central legal issues involved the consideration of the respondent's impaired mental functioning at the time of the offence, and the extent to which this should reduce the moral culpability attributed to him. The court also had to assess the role of general deterrence in the sentencing process.

The Court of Appeal held that the respondent's impaired mental functioning was a significant mitigating factor that should be taken into account when determining the appropriate sentence. The court found that the respondent's moral culpability was reduced due to his impaired mental state, and that this should be reflected in the sentence imposed. The court also acknowledged that general deterrence played a role in the sentencing process, but it was not the sole consideration. The court ultimately determined that the sentence should be proportionate to the reduced moral culpability, and took into account the need to balance the interests of the community and the respondent.

In light of the above considerations, the Court of Appeal determined that the sentence imposed by the trial judge was excessive and ordered a reduction in the penalty. The court found that a sentence of imprisonment with a non-parole period of eight years was appropriate, taking into account the respondent's impaired mental functioning and the need to balance the interests of the community and the respondent. The court also noted that the sentence should reflect the seriousness of the offence and the need to uphold the rule of law.

The final orders of the court were that the sentence imposed by the trial judge be reduced to imprisonment with a non-parole period of eight years, and that the respondent be given credit for time served in custody. The court also ordered that the respondent be subject to certain conditions upon release from prison, including supervision and counselling. The decision in R v Disher highlights the importance of considering the unique circumstances of each case when determining an appropriate sentence, and the need to balance the various factors involved in the sentencing process.

Orders