R v JLE - [2011] VSC 669

IN THE SUPREME COURT OF VICTORIA

Revised

AT MELBOURNE

CRIMINAL DIVISION

No. 0013 of 2011

THE QUEEN

JLE

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2011
DATE OF SENTENCE:	22 December 2011
CASE MAY BE CITED AS:	R v JLE
MEDIUM NEUTRAL CITATION:	[2011] VSC 669

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CRIMINAL LAW – Constructive murder – Attempted armed robbery – Plea of guilty – Youth offender - No prior convictions – Remorse – Prospects of rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Forrester	Office of Public Prosecutions
For the Accused	Mr M. Dempsey	Victoria Legal Aid

HIS HONOUR:

JLE, on 20 April 2011, you pleaded guilty before me to the murder pursuant to s 3A of the Crimes Act 1958 and attempted armed robbery of Nitin Garg who died on 3 January 2010 at the Royal Melbourne Hospital. Your plea was conducted before me on 6 June 2011.

Your offending is a result of your actions from the preceding day. You and MRN whom you met at school and became good friends, met outside the local milk bar on the evening of 2 January 2010 in Robert Street, Yarraville. You went back to your home but soon after you walked to the Coles Supermarket in High Street, Yarraville. For reasons which have never been explained, you left the house with a folding knife in your pocket.

After buying a drink from Coles, you entered Cruickshank Park which was between your home and the supermarket near the Kingsville Primary School. Whilst in the park, you both spoke with a mutual friend, Aaron Foster, on a mobile phone and consumed your drinks. A short time later, Nitin Garg, who was talking on his mobile phone at that stage, walked past you and MRN.

MRN made the comment to you, “That bloke’s phone was nice”, referring to the victim’s phone. Following this comment, you removed a long sleeved jumper that you were wearing and wrapped it around your head as a way of concealing your face. When questioned by MRN as to what you were doing, you indicated that you were going to “roll” the victim which is taken to mean that you were going to rob him.

You proceeded to pull out the knife that you had on you and ran towards the victim pulling out the blade from the handle. As you approached Mr Garg from behind with the knife held up, you demanded, “Give me your phone now”. Mr Garg turned around to face you, grabbed you on the forearm and it is at this point that you stabbed Mr Garg in the abdomen. The actual mechanics of how he came to be stabbed are not possible to calculate.

Mr Garg ran away from you in the direction of his work, being the Hungry Jacks on the corner of Geelong Road and Somerville Road.

MRN ran up to you and you made the comment, “I don’t know if I got him.” In which I…

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 JLE

Details

AGLC: R v Jle [2011] VSC 669
Case: [2011] VSC 669
Decision Date: 22 December 2011

CaseChat Overview and Summary

In the matter of R v JLE, the accused pleaded guilty to a charge of attempted armed robbery. The case came before the court to determine the appropriate sentence for the offence. The accused, a young person without prior convictions, had pleaded guilty and expressed remorse for their actions. The court was tasked with weighing the seriousness of the crime against the accused's age, lack of criminal history, and expressions of remorse in order to determine an appropriate sentence.

The legal issues before the court included the principles of sentencing for a youth offender, the nature and circumstances of the offence, and the factors that might mitigate or aggravate the offence. The court considered the principle that young offenders should be given a second chance, and the guidelines set out in relevant statutes and case law regarding sentencing for attempted armed robbery. The court also took into account the principles of rehabilitation and deterrence in fashioning a sentence.

The court found that, while the offence was serious, the accused's age, lack of criminal history, and remorse were significant mitigating factors. The court determined that a custodial sentence was necessary to adequately reflect the seriousness of the offence and to provide a deterrent effect. However, the court also considered the prospects for the accused's rehabilitation and the likelihood of the accused reoffending. Ultimately, the court sentenced the accused to a term of imprisonment with a non-parole period, taking into account all the mitigating and aggravating factors.

The final orders of the court included a custodial sentence with a specified non-parole period, and conditions for the accused's release on parole. The court also made orders for the accused to undergo rehabilitation programs and counselling as part of their sentence.

Orders