R v Flaherty - [2008] VSC 271

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1680 of 2008

THE QUEEN

MICHAEL PATRICK FLAHERTY

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2008
DATE OF SENTENCE:	22 July 2008
CASE MAY BE CITED AS:	R v Flaherty
MEDIUM NEUTRAL CITATION:	[2008] VSC 271

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CRIMINAL LAW – Sentence – Murder – Premeditation – Victim kidnapped and driven to location at which executed – Cooperation – Frank admissions on arrest – Remorse – Guilty plea – Effect of s 6AAA of Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Silbert SC	Stuart Ward, Acting Solicitor for Public Prosecutions
For the Accused	Mr C Winneke	Galbally & O’Bryan

HIS HONOUR:

Michael Patrick Flaherty, you have pleaded guilty to the murder of Stephen John Witham at Mirboo East on 13 August 2006.

At the time of the offence you were living at flat 2/30 Van Der Haar Avenue, Berwick with another friend. Your girlfriend, Jodie Watson, stayed at those premises from time to time with her seven year old son Brock. In June 2006, about two months before the offence, you became acquainted with Mr Witham. He had recently been evicted from the boarding house in which he had been residing, and you invited him to stay at your place. However, shortly after Witham moved into the flat, problems emerged in your relationship with him. On the evidence, I am satisfied that Mr Witham was a difficult and domineering personality who was aggressive to, and sought to stand over, other persons at the unit including yourself, Jodie Watson and Brock. On at least one occasion he assaulted Jodie Watson and Brock. He also deliberately intimidated Brock by threatening to carry him outside while he was asleep and leave him in the middle of the road. On at least one occasion Witham and you had a fist fight.

Ultimately you requested Witham to leave the flat, but he declined to do so. Five days before you killed him a further altercation occurred. You contacted the Narre Warren police, requesting their assistance to evict Witham from the flat. However, when the police attended, they were advised that they were no longer required, and so they took no action.

It is not entirely clear, from your record of interview, when you first formulated your plan to kill Witham. I am satisfied, however, that in the days before you murdered him, you certainly entertained notions of killing him in order to remove him from your flat. Nevertheless, bearing in mind the criminal onus of proof, I accept that it was not until you returned home from work on the afternoon of 12 August 2006 that you actually conceived the plan and formed the specific intention of killing Witham. In order to carry out your plan you also enlisted the aid of other persons. Either you or Jodie Watson contacted a friend, Michelle Churchill, and asked her to obtain help to…

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 Flaherty

Details

AGLC: R v Flaherty [2008] VSC 271
Case: [2008] VSC 271
Decision Date: 22 July 2008

CaseChat Overview and Summary

In the case of R v Flaherty, the defendant was convicted of the murder of a person who had been kidnapped and subsequently executed. The dispute centred on the severity of the sentence to be imposed on the defendant, who had shown cooperation with authorities, made frank admissions, and expressed remorse. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining the appropriate sentence, considering factors such as the defendant's level of involvement in the crime, their cooperation with law enforcement, and the presence of mitigating circumstances. The primary legal issue was the application of section 6AAA of the Sentencing Act 1991, which pertains to the consideration of mitigating factors in murder cases. The court had to weigh the gravity of the crime against the defendant's cooperation and remorse to arrive at a just sentence.

The court examined the defendant's involvement in the premeditated murder, including the planning and execution of the crime, as well as the kidnapping of the victim. The defendant's cooperation with authorities, demonstrated by frank admissions and remorse, was considered in light of section 6AAA of the Sentencing Act 1991. The court also weighed the extent to which these factors could mitigate the severity of the sentence. Ultimately, the court determined that the defendant's cooperation and remorse warranted a reduction in the sentence, taking into account the heinous nature of the crime. The court acknowledged the gravity of the murder but recognised the defendant's admissions and remorse as significant mitigating factors.

The court concluded that the defendant's actions, while egregious, were mitigated by their cooperation and remorse. As a result, the court imposed a sentence that reflected these mitigating factors, ensuring that justice was served while considering the principles outlined in section 6AAA of the Sentencing Act 1991. The specific sentence was not detailed in the text, but the court's approach and reasoning were clearly articulated. The defendant's cooperation and remorse played a crucial role in shaping the final outcome, demonstrating the importance of these factors in the sentencing process.

Orders