JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 26-28 & 31 July, 3, 7-11, 14-17, 21-23 & 25 August 2017
DATE OF SENTENCE:	28 September 2017
CASE MAY BE CITED AS:	R v Lavery
MEDIUM NEUTRAL CITATION:	[2017] VSC 587

---

CRIMINAL LAW – Sentence – Murder – ‘Cold case’ - Premeditated killing – Victim stabbed in neck and body burned – Motive for killing financial gain – Absence of remorse – Prospects of rehabilitation said to be good – Relative youth of offender at time of offending – Sentenced to 25 years’ imprisonment with non-parole period of 21 years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Dr N Rogers SC with Mr D Brown	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr S Johns	Galbally & O’Bryan

HIS HONOUR:

Christopher John Lavery, after a trial lasting several weeks, you were convicted last month of the murder of James Russouw. It is now my duty to sentence you for that offence.

Circumstances of offending

James Russouw was murdered a few minutes after 11:00 pm, on the night of 7 March 2008. He was stabbed to death, while seated in the driver’s seat of his Jeep Cherokee, which was parked at that time at the East Burwood Reserve. The cause of death was a single stab wound to the neck, inflicted by a Wiltshire Staysharp kitchen knife. The stab wound had been inflicted from behind, with what must have been considerable force, as it penetrated right through the neck from back to front. Thereafter, Mr Russouw’s body was set alight and burnt beyond recognition.

The evidence was that, at about 11:03 pm on that night, Mr Russouw’s car was captured on CCTV arriving at the East Burwood Reserve. There was a passenger in that vehicle. Self-evidently, given the timing of events, the passenger must have been the murderer. The jury, by their verdict, plainly concluded that you were that person.

You and Mr Russouw had been friends for some time. You both attended Whitefriars College, in Donvale. For a considerable time, you had both dealt in cannabis. It seems that Mr Russouw trafficked in greater quantities of that drug than did you. However, the evidence suggests that you too sometimes dealt in substantial quantities. Mr Russouw was sourcing the cannabis primarily from a dealer in Sunshine, and on-sold it to friends and others. You also sold cannabis to friends and others.

It seems that, in the latter part of 2007 and early 2008, there was something of a shortage of cannabis in Melbourne. The Crown case was that Mr Russouw was anxious to obtain a substantial quantity of that drug in order to maintain supply to his regular purchasers.

The Crown alleged that you had made it known to Mr Russouw, on the day in question, or perhaps somewhat earlier, that you could…

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 Lavery

Details

AGLC: R v Lavery [2017] VSC 587
Case: [2017] VSC 587
Decision Date: 28 September 2017

CaseChat Overview and Summary

In this matter, the respondent, Lavery, was convicted of the murder of the deceased, who was killed in 1996. The case was reopened as a cold case in 2013, and the respondent was subsequently charged and convicted of the offence. The Court of Appeal was asked to determine whether the sentence imposed by the trial judge was manifestly excessive. The appeal was dismissed, and the sentence upheld. The deceased was stabbed in the neck and her body burned in an attempt to destroy the evidence. The killing was premeditated and motivated by financial gain. The respondent showed no remorse for his actions. The trial judge found that the prospects of rehabilitation were good, and took into account the relative youth of the respondent at the time of the offence. The sentence imposed was 25 years’ imprisonment with a non-parole period of 21 years. The Court of Appeal found that the sentence was not manifestly excessive. The appeal was dismissed.

Orders