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R v Guillerme

R v Guillerme

Case [2023] VSC 36 9 February 2023

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0338

Between:
THE KING
-and-
SAMANTHA GRACE GUILLERME	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	19 December 2022
DATE OF SENTENCE:	9 February 2023
CASE MAY BE CITED AS:	R v Guillerme
MEDIUM NEUTRAL CITATION:	[2023] VSC 36

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CRIMINAL LAW — Sentence following sentence indication — Manslaughter by unlawful and dangerous act — Statutory complicity — On pretext, accused lured deceased to remote location into clutches of two co-accused believing they would “kick the shit out of him” — Co-accused sent accused down road to wait while they took deceased into bush at gunpoint — Deceased not kicked, bashed or shot by co-accused — Instead, on prosecution case, deceased murdered by administration of GHB — Accused absent when drugging and death occurred — Accused did not contemplate killing or means by which effected — Deceased’s partly decomposed body discovered in bush five weeks later — Accused pleaded guilty despite arguable defence based on co-accused’s departure from agreement — Remorse — No history of violence — Limited criminal history — Undertaking to give evidence against two co-accused at murder trial — Excellent prospects of rehabilitation — Return to prison likely to restore accused’s prior depression — Hardship of prison conditions during pandemic — Current sentencing practices — Sentence of three-and-a-half years’ imprisonment with non-parole period of fifteen months — Sentence imposed less severe than indicated at sentence indication — But for plea of guilty and undertaking to assist authorities, sentence of eight-and-a-half years’ imprisonment with non-parole period of six years — Assuming plea of guilty without undertaking, sentence of six years’ imprisonment with non-parole period of three years — Crimes Act 1958 (Vic), s 323(1)(c); Criminal Procedure Act 2009 (Vic), ss 207-209 & 291-294; Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Rochford KC with Ms B Goding	Abbey Hogan, Solicitor for Public Prosecutions
For Ms Guillerme	Mr J Desmond	Stephen Peterson Lawyers

HIS HONOUR:

Overview

At the peak of the goldrush, the Gippsland hamlet of Walhalla swelled in population to about four thousand hopefuls. Some say it’s a myth — perhaps an allusion to its Norse eponym — but legend has it that there was so little room left in the town’s steep hillside cemetery that some who perished seeking their fortune suffered what was thought to be the pauper’s indignity of being buried standing up.[1]
[1]It is thought that the town took its name from an early local goldmine, which had been named after the Walhalla temple in Donaustauf in Germany, which itself had been named after the Valhalla of Norse mythology — the place where half of those who died in combat waited, presumably standing, until called upon to fight in aid of the god Odin.

But there was no dignity in death for Jarrad Lovison. Not a shred. He wasn’t even given a hasty…

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 Guillerme

Details

AGLC: R v Guillerme [2023] VSC 36
Case: [2023] VSC 36
Decision Date: 9 February 2023

CaseChat Overview and Summary

In the case of R v Guillerme, the accused was convicted of manslaughter by unlawful and dangerous act, as part of a statutory complicity arrangement. The accused lured the deceased to a remote location under the pretense that two co-accused intended to assault him. However, the co-accused took the deceased into the bush at gunpoint, and he was subsequently murdered by the administration of GHB, although the accused was absent during the drugging and death. The accused pleaded guilty despite having a potentially viable defence based on the co-accused's departure from their agreement. The accused showed remorse, had no history of violence, limited criminal history, and had undertaken to give evidence against the two co-accused at their murder trial. The accused also had excellent prospects of rehabilitation, and the court recognised that returning to prison was likely to exacerbate their prior depression. Additionally, the court considered the hardship of prison conditions during the pandemic and current sentencing practices. The court imposed a sentence of three-and-a-half years’ imprisonment with a non-parole period of fifteen months, which was less severe than the sentence indicated at the time of the indication hearing. However, the sentence would have been eight-and-a-half years’ imprisonment with a non-parole period of six years but for the plea of guilty and the undertaking to assist authorities. Assuming a plea of guilty without the undertaking, the sentence would have been six years’ imprisonment with a non-parole period of three years.

The court was required to determine the appropriate sentence for the accused, considering the statutory complicity charge, the mitigating factors, and the potential impact of the sentence on the accused's mental health and well-being. The court also had to balance the need for punishment and deterrence with the principles of rehabilitation and proportionality. The court acknowledged the accused's guilty plea and undertaking to assist authorities as significant mitigating factors, but also considered the gravity of the offence and the need for general deterrence. The court imposed a sentence that was less severe than initially indicated, but still reflected the seriousness of the crime and the need for punishment and deterrence. The court also considered the potential impact of the sentence on the accused's mental health and well-being, as well as the current sentencing practices and the hardship of prison conditions during the pandemic. The court's sentence balanced these factors and reflected a proportionate response to the crime committed.

Orders