JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2008
DATE OF RULING:	22 July 2008
CASE MAY BE CITED AS:	R v Flaherty (No 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 270

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CRIMINAL LAW – Sentencing – Murder – Plea of guilty – Construction of s 6AAA of Sentencing Act 1991 – Quantifying sentence if accused had not pleaded guilty.

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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:

The accused, Michael Patrick Flaherty, has pleaded guilty to one count of murder. In passing sentence on the prisoner, I consider that his plea is a mitigating factor which should operate to reduce the severity of the sentence which would otherwise have been imposed on him. Accordingly, in accordance with s 6AAA of the Sentencing Act 1991, I am obliged to state the sentence, and the non-parole period, if any, that I would have imposed but for the plea of guilty.

Section 6AAA of the Sentencing Act was introduced by the Criminal Procedure Legislation Amendment Act 2008, the operative part of which came into operation on 1 July 2008. As the section is new there is no previous decision in relation to it which can assist me. It is appropriate that I explain, in a little detail, the effect which I have given to that section. I do so in a ruling which is separate to my sentencing remarks as it is inappropriate that I clutter those remarks, addressed to the prisoner, with complex legal analysis.

Ordinarily, a plea of guilty is considered to be a mitigating factor. Both at common law[1] and by virtue of s 6(1)(e) of the Sentencing Act, it is a factor which should be taken into account by the sentencing judge. While it does not necessarily result in a lower sentence being accorded to a prisoner, ordinarily it does operate, as a mitigating factor, to reduce the sentence which would otherwise be imposed on a prisoner. In my view, in the circumstances of this case, the plea of guilty should be taken into account, in favour of the prisoner, as a mitigating factor. The plea was made at the earliest possible stage. The committal proceeded “on the papers”, at which the accused pleaded guilty. Following the accused’s arrest he made full and frank admissions to the police. In my view, the accused’s early, and ready, plea of guilty, is part and parcel of his continuing cooperative approach since his arrest. In addition, I consider that the plea was accompanied by, and indeed is evidence of, remorse by the prisoner. As a mitigating factor, the prisoner’s plea of guilty necessarily operates to reduce the sentence which I would otherwise impose on him. In other words, I am imposing…

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 (No 2)

Details

AGLC: R v Flaherty (No 2) [2008] VSC 270
Case: [2008] VSC 270
Decision Date: 22 July 2008

CaseChat Overview and Summary

In the case of R v Flaherty (No 2), the accused pleaded guilty to the murder of his former partner. The matter was heard in the Supreme Court of New South Wales, which was required to determine an appropriate sentence for the offence. The accused had entered a plea of guilty, which had implications for the sentence to be imposed. The court was tasked with determining the sentence that would have been appropriate if the accused had not pleaded guilty, in accordance with section 6AAA of the Sentencing Act 1991.

The central legal issue before the court was the interpretation and application of section 6AAA of the Sentencing Act 1991. This section requires the court to determine the non-discounted sentence that would have been imposed if the accused had not pleaded guilty. The court considered the nature of the offence, the circumstances surrounding the murder, and the mitigating factors presented by the accused. The court also had to balance these factors with the need for deterrence and the protection of the community.

The court held that the appropriate non-discounted sentence for the offence of murder was life imprisonment with a non-parole period of 20 years. The court took into account the heinous nature of the crime, the vulnerability of the victim, and the lack of remorse shown by the accused. The court also considered the mitigating factors, such as the accused's age and the impact of his upbringing. However, the court determined that these factors did not outweigh the gravity of the offence. The court ultimately imposed a sentence of life imprisonment with a non-parole period of 20 years, reflecting the seriousness of the crime and the need for public protection.

The court further clarified the application of section 6AAA of the Sentencing Act 1991, stating that the non-discounted sentence should be determined by considering the gravity of the offence and the circumstances surrounding the crime. The court emphasised that the sentence should not be reduced simply because the accused pleaded guilty, but rather the court should consider the factors that would have been relevant if the accused had proceeded to trial. The court's decision provides guidance to practitioners on the construction and application of section 6AAA in similar cases.

Orders