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R v Jagroop

R v Jagroop

Case [2009] VSCA 46 17 March 2009

Sentencing

Manslaughter by Criminal Negligence

Remorse

Youth of Offender

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 541 of 2008

THE QUEEN
	v
AMITESH BALI JAGROOP
	JUDGES:	DODDS-STREETON and WEINBERG JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2009
DATE OF JUDGMENT:	17 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 46

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CRIMINAL LAW – Sentencing – Manslaughter by criminal negligence – Failure to seek medical assistance for wife injured in altercation when appellant attempted to prevent her departure – Appellant moved unconscious wife and deceived others as to whereabouts – Previous physical violence – Guilty plea, remorse, youth of offender – Whether due weight to good character – Whether sentence of ten years’ imprisonment with seven year non-parole period manifestly excessive – Appeal allowed – Re-sentenced to eight years’ imprisonment with a non-parole period of five years and six months.

CRIMINAL LAW – Sentencing – Wide variation of circumstances and culpability in offences of manslaughter – Culpability generally less in cases of manslaughter by negligence – No inflexible rule – R v Vandergulik [2009] VSC 0003, R v Babsek; Ex parte Attorney-General (Qld) (1999) 108 A Crim R 141; [1999] QCA 364, R v Pesnak (2000) 112 A Crim R 410; [2000] QCA 245 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr O P Holdenson QC	Browne & Co

DODDS-STREETON JA:

Introduction

The appellant, Amitesh Bali Jagroop, on 4 December 2007 pleaded guilty in the Supreme Court to one count of manslaughter. On 13 February 2008 he was sentenced to ten years’ imprisonment with a non-parole period of seven years. A period of 613 days was declared as pre-sentence detention.

The maximum penalty for manslaughter is, pursuant to s 5 of the Crimes Act 1958, 20 years’ imprisonment.

On 17 October 2008, Neave JA granted the appellant leave to appeal.

Grounds of Appeal

The appellant appeals against his sentence on the following grounds:

1. The learned sentencing judge erred in the exercise of his discretion in failing to give sufficient weight to the Appellant’s plea of Guilty, the circumstances in which he pleaded Guilty and the consequences of his plea of Guilty.
2. The sentence of 10 years’ imprisonment, with a non-parole period of 7 years, imposed by the learned sentencing judge was, in all the circumstances of the case, manifestly excessive.

Appellant’s Background

The appellant was born in Fiji in September 1982 where he was raised. According to the appellant’s account of his background, his family life with his parents and three siblings was stable and happy. He was a successful student who completed year 12 and enjoyed sport. Upon graduation he studied engineering technology at university in Fiji although he only completed one year of the course. In late 2003, at the age of 21, he migrated to Australia with his parents.

Upon arrival, the appellant first worked at a furniture factory. He then undertook one year of an advanced diploma at…

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 Jagroop

Details

AGLC: R v Jagroop [2009] VSCA 46
Case: [2009] VSCA 46
Decision Date: 17 March 2009

CaseChat Overview and Summary

In the case of R v Jagroop, the appellant was convicted of manslaughter by criminal negligence and sentenced to ten years' imprisonment with a non-parole period of seven years. The appellant had attempted to prevent his wife from leaving their residence and, during an altercation, she was injured. He subsequently moved his unconscious wife and misled others about her whereabouts. The appellant had a history of previous physical violence, but he entered a guilty plea and demonstrated remorse. The court was required to determine whether the sentence imposed was manifestly excessive, particularly in relation to the weight given to the appellant's good character.

The central legal issues revolved around the appropriate sentence for manslaughter by criminal negligence, the significance of the appellant's good character and remorse, and whether the sentence imposed was manifestly excessive. The court examined the principles set out in previous cases, such as R v Vandergulik, R v Babsek; Ex parte Attorney-General (Qld), and R v Pesnak, which established that while there is no inflexible rule, the culpability in cases of manslaughter by negligence generally tends to be less than in cases involving intentional acts.

The court concluded that the sentence of ten years' imprisonment with a non-parole period of seven years was manifestly excessive. It found that the primary judge had not given sufficient weight to the appellant's good character and his remorse. The court also noted that the appellant's youth was a relevant mitigating factor. As a result, the appeal was allowed, and the appellant was re-sentenced to eight years' imprisonment with a non-parole period of five years and six months.

Orders