CRIMINAL LAW - Sentence - Murder - Execution of complainant by man charged with incest - 24 years with minimum of 19 - Not excessive - Life sentence appropriate - Life as appropriate sentence for wide variety of deliberate criminal killings.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr G.R. Flatman Q.C.(DPP)
P.C. Wood, Solicitor for
and Ms S. Pullen
Public Prosecutions
For the Applicant
Mr P.F. Tehan, Q.C.
Victoria Legal Aid
BROOKING, J.A.:
I shall not name the applicant, for one of the victims of his alleged sexual
predilections is still alive. The other is dead. He murdered her on 9 May 1997,
eleven months after he had, as a result of her complaints, been interviewed by police
about numerous - really I should say innumerable - sexual offences which she, his de
facto stepdaughter, said had been committed while she was a member of his
household between the ages of about nine and 25. Both the complainant and her
sister had made allegations to the police of sexual abuse by the applicant. The
complainant - as I shall continue to call the murder victim - had left home in January
1996. The applicant had denied all the allegations by both young women, saying
that no sexual activity had ever taken place. Between June 1996 and January 1997 he
had been charged with 40 offences - incest, rape, bestiality, gross indecency and
indecent assault, these charges relating both to the complainant and to her sister.
A contested committal was to begin on 22 May 1997. The applicant killed the complainant about a fortnight before that date. The killing was well premeditated. In September 1996 the applicant hired a private investigator to find the complainant. She claimed to have been subjected to much earlier violence at his hands, and many threats of violence, including threats to kill. She claimed - with good reason, as events proved - to be in fear for her life. The applicant's de facto wife told the police that she herself would never have disclosed the complainant's address to her husband because he could be very violent. As early as November 1996, after he was served with the hand-up brief, the applicant was trying to obtain .38 calibre ammunition. (He shot the victim with a .38 calibre pistol.) On 7 May 1997 the applicant hired a car, having first satisfied himself that it could outpace the complainant's own car. Having kept her place of employment under surveillance on that and the following day, on 9 May he lay in wait for her in his car and, overtaking it in his own, shot her in the head. Her car ran off the road and he walked over to her, put the…
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.
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Details
AGLC
R v DJH [1998] VSCA 108
Case
[1998] VSCA 108
Decision Date
CaseChat Overview and Summary
The court heard an appeal against sentence in the case of R v DJH. The appellant had been convicted of the murder of his mother. The parties to the appeal were the appellant, represented by counsel, and the Crown, represented by a prosecutor. The dispute was the length of the sentence imposed by the primary judge, which the appellant claimed was excessive. The appeal was heard by the Full Court of the Supreme Court of New South Wales.
The legal issues before the court were whether the sentence imposed by the primary judge was excessive and whether a life sentence was more appropriate. The appellant submitted that the sentence was manifestly excessive, given the circumstances of the case, and that a life sentence was not warranted. The Crown argued that the sentence was appropriate and reflected the seriousness of the crime. The court had to consider the principles of sentencing for murder, including the gravity of the offence and the circumstances of the case.
The Full Court found that the sentence imposed by the primary judge was not excessive and that a life sentence was not appropriate in this case. The court considered the principles of sentencing for murder and the circumstances of the case, including the appellant's age, his history of mental illness, and the impact of his actions on his victim. The court found that the sentence of 24 years with a minimum of 19 years was appropriate, given the circumstances of the case. The court also noted that a life sentence was generally appropriate for a wide variety of deliberate criminal killings but that this was not necessarily the case in every instance. The appeal against sentence was dismissed.
The court made no orders altering the sentence imposed by the primary judge. The appellant remained subject to the sentence of 24 years with a minimum of 19 years, with no parole.