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R v Guthrie

R v Guthrie

Case [2006] VSCA 192 21 September 2006

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 27 of 2005

THE QUEEN
	v.
JASON PAUL GUTHRIE

No. 25 of 2005

THE QUEEN
	v.
DANIEL JOHN NUTTAL

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JUDGES:	CHERNOV, VINCENT AND REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 May 2006
DATE OF JUDGMENT:	21 September 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 192	1^st Revision 22 September 2006

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Criminal Law – Application for leave to appeal against conviction – Two co-accused found guilty of two murders committed in a joint enterprise – Whether separate trials should have been ordered – Adequacy of directions to jury regarding use of evidence from police interview of one accused – Apparent truthfulness of co-accused’s interview said to be prejudicial – No error in trial judge’s decision to try the accused together – Directions to jury adequate – Application dismissed.

Criminal law – Sentencing – Applications for leave to appeal against sentence – Whether trial judge failed to give sufficient weight to plea of guilty by one accused – Trial judge erred in holding that plea of guilty outweighed by aggravating factors – Applicant re-sentenced – Parity – Co-accused also re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the applicant Guthrie	Mr L.C. Carter	Victoria Legal Aid
For the applicant Nuttal	Mr O.P. Holdenson, Q.C. with Mr G.A. Clancy	Kerry R. Clancy

CHERNOV, J.A.,
VINCENT, J.A.,
REDLICH, J.A.:

The applicants, Jason Paul Guthrie (“Guthrie”) and Daniel John Nuttal (“Nuttal”), who are now aged 36 and 29 years respectively, were presented jointly before the Supreme Court at Shepparton, on 3 November 2004, for the murder at Shepparton on 9 February 2003 of John Gordon MacKay and Allan Raymond Thomas. Guthrie pleaded guilty to the murder of MacKay (count 1) but not guilty to that of Thomas (count 2). Nuttal pleaded not guilty to both counts. On 24 November 2004, the jury returned verdicts of guilty against each of them on each count.

After hearing pleas in mitigation of penalty presented on behalf of each, the learned sentencing judge, on 4 February 2005, imposed the following terms of imprisonment:

Guthrie
Count 1 - 27 years;
Count 2 - 25 years.
His Honour directed that five years of the sentence imposed on count 2 be served cumulatively with that imposed on count 1. This created a total effective sentence of 32 years, in respect of which a non-parole period of 26 years was fixed.

Nuttal
Count 1         -          25 years;
  Count 2         -          25 years.
Again, his Honour directed that five years of the sentence imposed on count 2 be served cumulatively with that imposed on count 1, creating a total effective sentence of 30 years, in respect of which he fixed a non-parole period of 24 years.

Guthrie now seeks leave to appeal against his sentence on the grounds that:

1.The learned sentencing judge erred by giving insufficient weight to his plea of guilty on count 1 on the presentment.

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 Guthrie

Details

AGLC: R v Guthrie [2006] VSCA 192
Case: [2006] VSCA 192
Decision Date: 21 September 2006

CaseChat Overview and Summary

The case of R v Guthrie involved two applicants who were convicted of two separate murders committed in a joint enterprise. The applicants sought leave to appeal against both their convictions and sentences. The primary issues before the court were whether the trial judge should have ordered separate trials, whether the jury directions regarding the use of evidence from a police interview of one accused were adequate, and whether the trial judge erred in assessing the weight of the applicants' pleas of guilty in sentencing.

The court found that there was no error in the trial judge's decision to try the applicants together. It held that the directions given to the jury were adequate, despite the prejudicial nature of the truthfulness of the co-accused's interview. Regarding the sentencing, the court found that the trial judge had erred in holding that the plea of guilty was outweighed by aggravating factors. Consequently, both applicants were re-sentenced to ensure parity with their co-accused.

The court dismissed the application for leave to appeal against the convictions, affirming the trial judge's decisions. However, the applicants were re-sentenced to ensure that their pleas of guilty were appropriately considered, in line with the sentencing of their co-accused.

Orders