R v Gill & Mitchell - [2003] VSC 364

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1408 of 2003

THE QUEEN

JASON RUSSELL GILL & MICHAEL PATRICK MITCHELL

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JUDGE:	REDLICH J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2003 to 21 May 2003
DATE OF SENTENCE:	26 September 2003
CASE MAY BE CITED AS:	R v Gill & Mitchell
MEDIUM NEUTRAL CITATION:	[2003] VSC 364

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Sentence – Murder – Whether responsibility of each offender proved for all of the deceased's injuries.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. McArdle Q.C. with Ms R. Carlin	Ms Kay Robertson, Solicitor for the Office of Public Prosecutions
For the Accused Jason Russell Gill	Mr L. Hartnett	Chester Metcalfe & Co.
For the Accused Michael Patrick Mitchell	Mr D. Drake	Grubissa White

HIS HONOUR:

Summary of Facts

On 11 January 2002, Jason Russell Gill and Michael Patrick Mitchell, together with Lucas Robert Stanbury, were arrested and charged with the murder of Lazo Krincevski at Ivanhoe in the State of Victoria on 14 December 2001. Following a contested committal hearing, both Mr Gill and Mr Mitchell were committed to stand trial on one count of murder.

Lucas Stanbury was discharged at committal in relation to the charge of murder, but was, however, committed to stand trial on a charge that knowing that Mr Gill and Mr Mitchell to be guilty of the murder of Lazo Krincevski, he did acts with the purpose of impeding your apprehension, prosecution, conviction or punishment. He was arraigned on 3 February 2003 and pleaded guilty to this charge also giving an undertaking to the court at this hearing to give evidence at the trial of Jason Gill and Michael Mitchell in accordance with his statements made to the police and his Record of Interview.

On 1 April 2003 at the Supreme Court in Melbourne, Lucas Stanbury was sentenced by his Honour Justice Nettle to two years and five months imprisonment, with a period of one year and ten months fixed to be served before being eligible for parole. Further, his Honour ordered that all of the sentence of imprisonment imposed, save for forty-four days of pre-sentence detention, be suspended for a period of two years.

Subsequent to that hearing, Mr Gill and Mr Mitchell were each presented on one count of murder, to which charge you both pleaded not guilty.

Following a trial in the Supreme Court which commenced on 29 April 2003, a jury on 26 May 2003 found both Jason Russell Gill and Michael Patrick Mitchell guilty of Lazo Krincevski’s murder. The hearing of the plea was adjourned to enable both persons to be psychologically assessed. On 30 July 2003, I heard the pleas and received psychologist's reports concerning both Mr Gill and Mr Mitchell.

The Facts
Background
Thursday 13 December 2001 at 75 Beatty Street, Ivanhoe

In the early evening of Thursday 13 December 2001, a number of persons both invited and otherwise arrived at the home of Mr Mitchell at 75 Beatty…

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 Gill & Mitchell

Details

AGLC: R v Gill and Mitchell [2003] VSC 364
Case: [2003] VSC 364
Decision Date: 26 September 2003

CaseChat Overview and Summary

The defendants, Gill and Mitchell, were convicted of murder in relation to the death of a victim. They appealed against their sentences, arguing that the trial judge erred in determining that they were each responsible for all of the victim's injuries. The appeal was heard in the Court of Criminal Appeal in Victoria.

The court was required to decide whether the trial judge's findings of fact regarding the responsibility of each offender for all of the victim's injuries were open to them, and whether those findings were legally sufficient to support the sentences imposed. The court examined the evidence presented at trial, including witness statements, medical evidence, and the defendants' own admissions, to determine whether the trial judge's findings were supported by the evidence. The court also considered the principles of joint criminal enterprise and the doctrine of joint enterprise, and whether they applied to the facts of this case.

The court found that the trial judge's findings of fact were open to them, and that the evidence supported the conclusion that each defendant was responsible for all of the victim's injuries. The court rejected the defendants' arguments that the trial judge had erred in law, and that the sentences imposed were excessive. The court held that the trial judge had properly considered the principles of joint criminal enterprise and joint enterprise, and that the sentences imposed reflected the seriousness of the offence and the responsibility of each defendant for the victim's death.

The appeal was dismissed, and the sentences imposed by the trial judge were upheld.

Orders