R v Foster - [2009] VSC 124

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1727 of 2008

THE QUEEN

CLAYTON FOSTER

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2009
DATE OF SENTENCE:	2 April 2009
CASE MAY BE CITED AS:	R v Foster
MEDIUM NEUTRAL CITATION:	[2009] VSC 124

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CRIMINAL LAW – Sentencing – Murder – Plea of guilty – Loss of self‑control when alcohol‑affected – Post traumatic stress syndrome – Depression – Alcoholism – Remorse – Prospects for rehabilitation – Offender aged 30 – 14 years’ imprisonment – Minimum non‑parole period of 10 years – R v Verdins 2007 16 VR 269.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Brown	Office of Public Prosecution
For the Accused	Mr L Hartnett	Victoria Legal Aid

HIS HONOUR:

Clayton Foster you have pleaded guilty to the murder of Laura Dabb at Epping on 4 September 2007.

At that time you had lived with your victim for some months. You were aged 30 and she was aged 46. You both came from troubled backgrounds and had formed a relationship after meeting when you were both living in a boarding house in St Kilda.

During the week prior to Laura’s death, the two of you were staying at the home of a friend, DL, in Epping.

DL had two young children and had been your friend for some two years. You had stayed with her for short periods of time previously and had done so with Laura.

On these occasions you had not been violent towards Laura and indeed there is no evidence of violence on your part towards her prior to the night of her death.

On 4 September 2007, you and Laura commenced drinking port together at about 2:00 pm. By 6:00 pm Laura was heavily intoxicated. At about that time she was observed lying on the roadway close to DL’s house. Two motorists stopped to assist her and after she had pointed out DL’s house, they helped her walk back there. Laura continued to drink with you after her return. She also argued with both you and DL. She accused you and DL of having a relationship. This was denied by both you and DL and DL says that she gave Laura a backhander during the argument because of the way Laura was talking to her.

Laura was an Nyungar aboriginal woman from Wongan Hills who had been removed from her family in Western Australia when she was a baby and placed at the Norseman Mission. She subsequently led a troubled life and had moved to Victoria in July 2007. It is apparent that she was emotionally insecure and combatively argumentative about her relationship with you when she was drunk. In particular she expressed extreme jealousy.

After the argument Laura left the house and knocked on the door of the house next door. She told the neighbour that she had been assaulted by her de facto and that she was 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 Foster

Details

AGLC: R v Foster [2009] VSC 124
Case: [2009] VSC 124
Decision Date: 2 April 2009

CaseChat Overview and Summary

In the matter of R v Foster, the defendant was convicted of murder, having pleaded guilty to the charge. The case was heard in the Victorian Court of Appeal. The dispute centred on the appropriate sentence to be imposed on the defendant, who killed his partner in a moment of lost self-control while under the influence of alcohol. The case raised significant issues concerning the sentencing of the defendant, who had a history of alcohol abuse, post-traumatic stress disorder, and depression, and who expressed remorse for his actions. The primary legal issues before the court were the extent to which these factors should be taken into account when determining the appropriate sentence, and whether the sentence imposed by the trial judge was too severe.

The court considered the principles set out in R v Verdins, which emphasised the need for a sentence that reflected the particular circumstances of the offender and the crime. The court noted that the defendant had a history of alcohol abuse and mental health issues, which had contributed to the loss of self-control that led to the killing. However, the court also noted that the defendant had shown remorse for his actions and had prospects for rehabilitation. The court ultimately determined that the sentence imposed by the trial judge was appropriate, given the circumstances of the case. The court rejected the defendant's appeal against sentence, and upheld the 14-year sentence with a minimum non-parole period of 10 years.

The court's decision in this case highlights the importance of considering the particular circumstances of the offender and the crime when determining an appropriate sentence. While the defendant's history of alcohol abuse and mental health issues were significant factors to be taken into account, the court also considered the gravity of the crime and the need for deterrence and denunciation. The court's decision also underscores the importance of rehabilitation and remorse in the sentencing process. In upholding the sentence imposed by the trial judge, the court sent a clear message that murder is a serious crime that will be punished severely, while also acknowledging the complex circumstances that may have contributed to the offender's actions.

Orders