R v KMW and RJB - [2002] VSC 93

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1423 of 2001

THE QUEEN

KMW AND RJB

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JUDGE:	COLDREY, J.
WHERE HELD:	GEELONG
DATE OF HEARING:	12-14 FEBRUARY 2002
DATE OF SENTENCE:	15 MARCH 2002
CASE MAY BE CITED AS:	R. v. KMW AND RJB
MEDIUM NEUTRAL CITATION:	[2002] VSC 93

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CATCHWORDS: Sentence – Plea of guilty to manslaughter – Killing of violent alcoholic in circumstances of fear by teenage offenders – Emphasis on rehabilitation – Release on 3 year undertaking under s.72 of Sentencing Act 1991 – Special conditions imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. Leckie	Ms. J. Burns, Solicitor for Public Prosecutions
For the Accused KMW	Mr. B. Bourke	Jones & Dowling
For the Accused RJB	Mr. P. Morrissey	Victoria Legal Aid

HIS HONOUR:

KMW and RJB, you can be seated.

You have each pleaded guilty to the manslaughter of Stuart Peter Alford at Belmont on 9 February 2001 and I must now sentence you.

At the time of the commission of this offence, you, KW, were 14 years old and you, RB were aged 16. You were both living at the Belmont flat of K's mother, Mrs CW. Also residing there was the deceased, Stuart Alford.

According to the depositional materials, Stuart Alford had been living spasmodically with Mrs W since 1993. In March 1989, MW who was your father, K, and also the father of your sister Nicola, had left the family. At this time your family was residing in Adelaide.

It is apparent from the various witness statements that Stuart Alford had an alcohol and drug problem and that when affected by alcohol, he would assault your mother. Initially these assaults occurred monthly. One was of sufficient severity to break your mother's cheek bone.

While in Adelaide, your mother obtained two intervention orders against Stuart Alford, but as was to become a pattern, she resumed her relationship with him.

In her statement, your elder sister Nicola, recounts the family moving to King Island, when Stuart Alford obtained a job at the local meat works. She describes frequent arguments over money and frequent assaults on your mother by the deceased, including one where he dragged your mother out of the family car by the hair. At the time your mother was pregnant with your half-brother Shannon. On another occasion, Nicola was punched when she tried to protect your mother from an assault.

In 1995, the family travelled to Burnie, Tasmania, which was the deceased's home town. According to your mother, this was to evade the attentions of welfare organisations and the police.

During the ensuing year, the deceased's assaults on your mother became more frequent and severe. Once again she had her cheek bone broken, but she dropped assault charges so that the deceased would not go to gaol. Intervention orders were obtained and subsequently breached.

In November 1995, Shannon was born. Nicola describes running away from the Burnie home at the age of…

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.

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Details

Case: [2002] VSC 93
Decision Date: 15 March 2002

CaseChat Overview and Summary

In the case before the Court, the respondents, KMW and RJB, pleaded guilty to the manslaughter of a violent alcoholic in circumstances that involved elements of fear. The case was heard in the Supreme Court of Victoria. The incident in question arose from a confrontation with the deceased, who was known to be violent and an alcoholic. The respondents, both teenagers at the time of the offence, sought to emphasise the need for rehabilitation in their sentencing. The Crown, on the other hand, argued for a custodial sentence that would reflect the seriousness of the offence.

The court was required to navigate several legal issues, including the appropriate weight to give to the respondents' guilty pleas, the nature and circumstances of the offence, and the appropriate balance between punishment and rehabilitation. The court also had to consider the provisions of section 72 of the Sentencing Act 1991, which allows for the release of offenders on an undertaking with special conditions. In particular, the court needed to determine whether the respondents were suitable candidates for this form of release and, if so, what conditions should be imposed.

In determining the appropriate sentence, the court considered the respondents' guilty pleas and the circumstances of the offence. The court recognised the fear experienced by the respondents during the confrontation, which may have influenced their actions. However, it also acknowledged the gravity of taking a life, even in such circumstances. Ultimately, the court decided to release the respondents on a three-year undertaking under section 72 of the Sentencing Act 1991. Special conditions were imposed to ensure that the respondents would receive the rehabilitation they needed and to protect the community.

The court's final orders included the release of the respondents on a three-year undertaking, subject to specific conditions designed to facilitate their rehabilitation and to safeguard the community. These conditions included mandatory counselling, regular reporting to a probation officer, and restrictions on their movements and associations. The court's decision reflected a careful balancing of the need for punishment, deterrence, and rehabilitation in the circumstances of this case.

Orders